CHUI KWOK YING v. CHUI SIU KIU KIM AND ANOTHER

HCMP 2018/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2018 OF 2014

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J U D G M E N T

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1.  The plaintiff is an elegant 92 year‑old lady. Her husband died 32 years ago. They had no children of their own. However her husband had “more than 10 children” at the time of their marriage. Thus, for the duration of their long marriage the plaintiff had more than 10 step‑children. She was also very close to her niece and nephew (D1 and D2) who she helped to bring up when they were young.

2.  On 27 March 2009 the plaintiff executed an enduring power of attorney (EPA) pursuant to the Enduring Power of Attorney Ordinance, Cap 501 (EPAO).  She appointed D1 and D2 as the attorneys under the EPA.

3.  For reasons upon which I shall elaborate further the EPA was registered by the Court on 6 June 2014 on D1 and D2’s application pursuant to sections 9 and 4(2) of the EPAO on the ground that the plaintiff was mentally incapable of managing her own affairs and that her incapacity was worsening with time.

4.  However, two weeks later, on 20 June 2014 the plaintiff purported to revoke the EPA by a deed of revocation (DoR).  At the time she executed the deed her psychiatrist at that time, Dr Yu Wai Tak, certified that he was satisfied that the plaintiff was mentally capable of making the revocation. The deed was signed in the presence of Dr Yu and in the presence of the plaintiff’s solicitor.  The requirements for a valid revocation had been complied with.

5.  Section 13(2) of the EPAO provides that:

“Where the enduring power is registered, on application made for the purpose, by or on behalf of the donor, the court shall confirm the revocation of the power if satisfied that the donor has done whatever is necessary in law to effect an express revocation of the power and was mentally capable of revoking a power of attorney when he did so.”

6.  By this action the plaintiff seeks an order that the DoR be confirmed.  The defendants resist the application on the basis that the plaintiff was not mentally capable of revoking the EPA at the time she did so.  This is the sole issue to be resolved.

7.  The plaintiff was the only witness of fact in support of the application.  D1 was the only witness of fact against it.  The rest of the evidence was expert evidence.  Pursuant to directions dated 11 September 2014 Dr Tam Mo Shing was appointed by the plaintiff and Prof Felice Lieh Mak by the defendants as the expert witnesses.  They saw the plaintiff on two occasions, on 20 November 2014 and 18 June 2015, and prepared two joint experts reports dated 24 January and 30 July 2015.

8.  The plaintiff has been represented by Mr James Sherry and Mr Amos Ma; the defendants by Mr Wong Yan Lung SC and Mr Johnny Ma.

PRELIMINARY APPLICATION

9.  On the morning of the first day of the trial Mr Sherry made an application by summons (dated one day earlier) to adduce further evidence, namely an affirmation from Dr Yu Wai Tak, the psychiatrist who had certified the plaintiff’s mental capacity at the time of the DoR.

10.  I refused the application and indicated that I would give brief reasons in due course which I now do as follows:

(i) Directions dated 13 November 2014 state that each side may nominate one medical expert who may not be the plaintiff’s treating doctors.  The obvious purpose of this is to have two independent opinions.  The parties agreed to this.

(ii) It was also directed that all the plaintiff’s medical records would be made available to the two experts.

(iii) If Dr Yu were permitted to file an affirmation (which purported to explain and elaborate upon his opinion as to the plaintiff’s mental capacity) it would be necessary to permit the defence to call additional medical evidence as well.  This would have been Dr Ronald Y L Chen who had treated the plaintiff for the previous six years. Dr Yu however had only been acquainted with the plaintiff’s situation for a matter of days at the time of his certification.

(iv) An adjournment to obtain Dr Chen’s evidence would have been inevitable.  Apart from the expense and the loss of time the case would have become, inter alia, an argument between treating doctors, the very opposite of what had been intended, agreed and directed.

(v) A further Directions Order, dated 24 April 2015, stated that:

“(6) The notes and records summarized at pages 11‑27 of the Joint Psychiatric Assessment Report dated 24^th January 2015 prepared by Dr. Tam Mo Shing and Professor Lieh Mak are to be adduced as agreed evidence without calling the respective doctors thereof.

(7) The medical evidence is to be limited to Dr. Tam Mo Shing Paul for the Plaintiff;

(8) The medical evidence is to be limited to Professor Felice Lieh Mak for the Defendants;”

(vi) The application was made extremely late.  This in spite of the fact that the plaintiff’s lawyers had known Prof Mak’s opinion for over 12 months.  They applied to set down for trial on 28 May 2015.  No satisfactory explanation has been provided for this delay.

(vii) No exceptional circumstances exist which might merit the granting of the application.

(vii) Permitting Dr Yu to become a witness would amount to allowing a third expert to give evidence for the purpose of disagreeing with Prof Mak.  Such a witness could not be regarded as independent in the same sense as Dr Tam and Prof Mak.

THE LAW

11.  Apart from an issue relating to the burden of proof, to which I shall refer briefly, there has been no disagreement as to the relevant law in this case.

12.  The relevant test is to determine whether or not the plaintiff was mentally capable for the particular task in issue, namely signing the DoR.  Under section 1A(1) of the Power of Attorney Ordinance (PAO):

“A person shall be regarded as being mentally incapable or suffering from mental incapacity for any purpose relating to a power of attorney for which the fact that a person is mentally incapable or is suffering from mental incapacity is relevant, if‑

(a) he is suffering from mental disorder or mental handicap and (i) is unable to understand the effect of the power of attorney; or (ii) is unable by reason of his mental disorder or mental handicap to make a decision to grant a power of attorney; or

(b) he is unable to communicate to any other person who has made a reasonable effort to understand him, any intention or wish to grant a power of attorney.”

13.  The expression “any purpose relating to EPA” clearly embraces signing a deed purporting to revoke it.

14.  For present purposes there is no significant difference between “mental disorder” and “mental incapacity”.  Pursuant to section 2 of the Mental Health Ordinance a mentally incapacitated person is a person who, inter alia, “is incapable by reason of mental incapacity of managing and administering his property and affairs …”.

15.  The effect of section 1A(1) PAO, above, is that the plaintiff must be shown to have been mentally capable of granting an EPA at the time she purporting to revoke it.  Namely, that she was able, inter alia, to understand its effect.  Thus, there must be clear understanding of the legal effect of revocation and the practical effect and consequences of revocation.

16.  In the context of the present case, key questions to the addressed are, at the time of revocation:

(i) Did she know who the attorneys were?

(ii) Did she know why the deed was being revoked?

(iii) Did she realise the consequences of revocation?

(iv) Could she understand and retain the above information?

(v) Could she explain her decision to others?

17.  The granting and revoking of enduring powers of attorneys is a serious and delicate matter frequently involving elderly and sometimes vulnerable people.  The statutory provisions and common law authorities are detailed and extensive. The above is but an outline of those matters of particular relevance to the present case.  The court’s task now is to consider the whole of the evidence and highlight those parts which assist in answering the single question — was the plaintiff mentally capable at the material time? — within the legal framework as described.  There is one final legal issue, the burden of proof.

BURDEN OF PROOF

18.  Mr Sherry submits that, once the mechanics of the DoR have been shown to have been properly complied with, about which there is no dispute in this case, the burden shifts to the defendants to prove that the plaintiff was mentally incapable at the time.

19.  Mr Wong SC submits that the burden is on the plaintiff at the outset, and remains on the plaintiff throughout, to prove that she was mentally capable at the time of signing.

20.  As will be seen from my decision in this matter it is not necessary to discuss the competing arguments because even if Mr Sherry were correct and the burden was on the defence I would have been satisfied that that burden had been discharged.

21.  For the sake of completeness however, had it been necessary to decide I would have ruled against Mr Sherry’s submission.  The burden is on the plaintiff to demonstrate that she was mentally capable at the material time.

THE EVIDENCE

22.  On 20 June 2014 Dr Yu Wai Tak, a specialist in psychiatry, examined the plaintiff for the purposes of certification for the DoR.  He had seen her once before.  He certified that:

“ I am of the opinion that Ms. Chui is capable of managing and administering her property and affairs. I am satisfied that she knows that she is going to make a Deed of Revocation (the ‘Deed of Revocation’) revoking an Enduring Power of Attorney made by her in favour of Chui Siu Kiu Kim and Chui Siu Man Vincent dated 27^th March 2009. I am satisfied that, with the assistance of proper explainations from her legal advisors, she is capable of understanding the contents of the Deed of Revocation. I am also satisfied that her state of mind does not distort feelings and judgments relevant to the making of the Deed of Revocation. She signed the Revocation of Enduring Power of Attorney in my presence on 20 June 2014.”

23.  The reliability of this statement is the issue in this trial.  The evidence was from four witnesses (already referred to) and all the plaintiff’s medical history by way of exhibits.

(1) THE PLAINTIFF

24.  The plaintiff had filed five affirmations in English, all a few pages in length, between 11 August 2014 and 22 April 2015.  It is neither surprising nor a matter of criticism that they were plainly drafted by her lawyers.

25.  In examination‑in‑chief she identified her five signatures and said that she adopted the affirmations as her evidence.  She was not asked anything else in chief.

26.  In cross‑examination although she, for the most part, understood the questions and she gave her answers clearly, the vast majority of her answers were that she did not remember or did not know or she asked for things to be explained to her.

27.  For example she was not able to say why she was giving evidence neither did she remember making her affirmations or the contents of them.  She did not know what an enduring power of attorney was or its purposes.  If she said that she did understand something she was unable to articulate it or repeat it in her own words.

28.  She was asked 30 to 40 questions in total in cross‑examination.  It is not necessary to further detail her answers in this judgment.  I am confident that medical experts would easily opine that she was unable, through mental incapacity, to manage her financial affairs now.

29.  19 months has passed since she signed the DoR.  In my judgment consideration of her mental capacity both before and after 20 June 2014 may assist in determining her mental capacity on 20 June 2014.  It is agreed that she is now suffering from dementia of the Alzheimer’s Type.  Was she suffering from dementia 19 months ago and, if so, to what extend did it incapacitate her?

30.  Before considering the evidence given by her niece, the 1^st defendant and one of her attorneys since 2009, I think it would be useful, at this point in the judgment, to deal with some factual issues which emerged in evidence concerning the relationship between the plaintiff and three of her step children, Daniel, Julin and Susanna.  The suggestion is that in the past, approximately, two years (a) they have unduly influenced or manipulated the plaintiff and (b) the plaintiff has been increasingly vulnerable to such manipulation.

The plaintiff’s relationship with three of her step‑children

31.  Of the plaintiff’s many step‑children only three have featured in the evidence, namely Daniel, Julin and Susanna.  Susanna had lived with the plaintiff for several years.

32.  I propose to list eight factual matters which have been referred to in evidence, primarily from the evidence of D1.  She, apart from the plaintiff, has been the only witness as to fact.  Her 22‑page affirmation is dated 30 September 2014.  No affirmations in reply have been made.  There has been no indication that Daniel or Julin or Susanna would give evidence at trial. 

(a) The plaintiff’s husband died in 1983.  There followed over 20 years of litigation in relation to his estate.  Generally speaking the plaintiff and the step‑children were on opposite sides of the litigation.  With this background it is surprising, although not impossible, to see that the plaintiff describes her relationship with the step‑children as “harmonious”.

(b) Soon after the valid registration of the EPA, on 16 June 2014, but before HSBC had made the consequent changes in authorization over her accounts, two sums, one for HK$100,000 and one for US$100,000 were withdrawn from two different accounts.  D1 was unaware of this at the time and took the view that the plaintiff was not able to, nor needed to, authorize the withdrawals of her own volition.

(c) Prior to the revocation on 20 June 2014 Dr Ronald Yuk Lun Chen had been the plaintiff’s doctor for six years.  However she was taken to Dr Yu Wai Tak who had not seen her before for the purpose of the DoR.  The DoR was executed the same day.

(d) The first joint medical examination took place on 20 November 2014.  A short break in the examination was proposed.  The plaintiff spent the break with Julin and Susanna.  The plaintiff emerged from the break to continue the examination in a distressed and tearful state.  She was holding a document which was a schedule purporting to list unauthorized withdrawals from her account between 2008 and 2014 totalling HK$7 million.  The clear implication was that the defendants had misappropriated this money.  The plaintiff herself had never made any similar allegations before.  When asked about it in chief the plaintiff said she understood it to be a list of “deposits”.  D1 was not cross‑examined about it.  Further research by the defendants’ legal team showed it to be a document without any factual basis. Every withdrawal from the plaintiff’s bank account since 2008 had been signed by herself (except two in 2008).  The file of documents produced exhibiting the totality of her withdrawals came to nearly 200 pages.  The two withdrawals with D1’s signature, in 2008, were both properly explained; the latter being a mistaken withdrawal of HK$3,000 which was rectified the same day.  In short, the evidence suggested that the allegation was wholly without foundation and seemingly proposed to the plaintiff by her step‑children as a fact.

This allegation has double significance because purported concern about the financial administration of the plaintiff’s affairs was the sole ground advanced for the revocation of the EPA in June 2014.  There are strong grounds for submitting that, in the circumstances, there were no valid grounds for seeking a revocation in the first place.

(e) According to D1, from about May 2014 it became difficult for her to see the plaintiff.  Daniel and Julin Kwan became hostile to her and made communication between herself and the plaintiff difficult.  On a subsequent occasion when it was suggested that D1 remained in the flat for a meal Daniel declined saying he had “no appetite”.  On a later occasion, on 6 August 2014, Daniel Kwan accused D1 of harassing the plaintiff when she delivered cash to her, saying “see you in court”. 

(f) In the first joint medical report Prof Mak clearly opined that, contrary to Dr Yu’s certified opinion, the plaintiff would not have had the mental capacity to sign the DoR at the material time. It was then proposed by the plaintiff’s legal team that a second interview with the plaintiff be conducted because the plaintiff had had the flu and/or had felt unwell at the time of the first interview which may have adversely affected her performance.  However, at the time of the first interview no suggestion had been made either from the plaintiff or anybody else that the plaintiff had been feeling unwell.  Moreover she had shown no signs of feeling unwell either.

(g) A second interview was nonetheless arranged.  A request was made that Prof Mak be replaced by a different doctor for the second interview.  The request was declined.

(h) Two weeks before the second interview Susanna Kwan (accompanied by her brother) had cause to attend Prof Mak for a consultation relating to her own medical condition.  It is plain that at the time of this consultation Susanna Kwan knew of Prof Mak’s involvement in her step‑mother’s case but that Prof Mak did not, at the commencement of the consultation, realise that this patient was the plaintiff’s step‑daughter.  She came to realise however when, at the conclusion of the consultation, Susanna Kwan volunteered information about the case and expressed concern that her step‑mother had been cheated of HK$7 million by her niece and nephew.  Prof Mak then realised the connection and advised her to say no more.  It is reasonable to infer that this was another attempt to remove Prof Mak as the defendant’s expert witness by attempting to compromise her independence.

33.  All these incidents taken together may fall short of being sufficient to draw a positive inference of deliberate and calculated manipulation.  However, they do in my judgment illustrate a degree of influence being exerted over the plaintiff’s affairs.  The fact that such influence could be easily exerted over an elderly and vulnerable lady is consistent with, and therefore relevant to, the issue of her mental capacity at the time of the signing of the DoR.

(2) MDM CHUI SIU KIU KIM (D1)

34.  I was satisfied that in all material respects D1 was a reliable witness.  Her evidence was given in a firm, clear and straightforward way.

35.  She and her brother (D2 who did not give evidence) had been chosen by the plaintiff in 2009 to be the attorneys for the EPA.  They were her trusted relatives.  She was genuinely affronted by the allegation that she had misused the plaintiff’s funds over six years and gave clear evidence refuting it.

36.  I further accepted her reasons for registering the EPA on 6 June 2014.  The validity of the registration is not challenged.  It was registered pursuant to section 4(2) of the EPOA which provides:

“If the attorney has reason to believe that the donor is or is becoming mentally incapable he must, as soon as practicable, apply under section 9 for registration of the instrument creating the power.”

37.  This places a statutory obligation to register on the attorneys.  D1’s evidence of her belief that the plaintiff was or was becoming mentally incapable may be summarised as increasing instances of memory loss relating to day‑to‑day financial matters, slowness in recognizing D1 and forgetfulness about recent events and meetings.  I accepted her evidence of genuine concern in relation to such matters and that her motivation was to “protect” the plaintiff.

38.  D1’s evidence concerning events at the time of the DoR (of which she was wholly unaware until afterwards) and subsequent events have been referred to under the previous heading of ‘Relationship with step‑children’ and I do not need to repeat it.

(3) MEDICAL EVIDENCE

39.  This falls to be considered under three heads: (i) the plaintiff’s medical history and records all made available to Dr Tam and Prof Mak; (ii) Dr Tam’s opinion; and (iii) Prof Mak’s opinion.  I shall deal with them in turn.

(i) Medical history and records

40.  When considering the different opinions of Dr Tam and Prof Mak it is important to note the wealth of documentation available to them about previous medical assessments.  It is important also to consider Dr Yu’s certification of mental capacity on 20 June 2014 in the context of her medical background.

41.  Both experts agreed that a “Mini‑mental State Examination” (“MMSE”) was an important tool in assessing mental capacity.  It is a series of simple but varied questions.  It is not the only tool and not a perfect tool but it is a well‑regarded and frequently used one.  The maximum score is 30.  A score of below 19 or 20 is an indication of mental incapacity or dementia.

42.  The plaintiff had been subjected to MMSE tests for several years prior to 2014.  Dr Raymond Chen had been her psychiatrist since 2008 and had seen her on a regular basis between 2008 and 2014.  Three days before the DoR he had diagnosed her as suffering from dementia with depression.

43.  During 2014 she took an MMSE test seven times (between January and November).  Her scores varied between 12 and 18.  She did not pass the test on any occasion.  The lowest score of 12 was recorded by Dr Chen, a week after the DoR.  In cross‑examination Dr Tam accepted that scores consistently below the pass mark decreased the “possibility” (Dr Tam’s word) of the plaintiff being mentally capable at the time of the DoR “based on the MMSE” (again, Dr Tam’s words).

44.  In the first joint report 16 pages of notes of previous consultations with four different doctors are recorded (13 pages of which relate to Dr Raymond Chen’s notes).  This formed part of the agreed evidence. Commenting on the previous medical history when giving her opinion Prof Mak said:

“In setting out my opinion I prefer to rely on the contemporaneous medical records rather than the reports. This is for the simple reason that the reports are secondary sources of information based on the medical records and as such some information are inadvertently omitted.”

45.  Mr Sherry stressed in his submissions that the ultimate question was the plaintiff’s mental capacity on 20 June 2014.  This is, of course, correct but to consider a single day in isolation is not realistic.  The medical history sheds important light on the critical day and Prof Mak emphasized when giving evidence that her opinion, which was contrary to Dr Yu’s, was based on the clinical records as well as the interviews.  She described her opinion as “the balance of clinical probabilities”.  Her thoroughness was impressive and helpful.

(ii) Dr Tam

46.  It should be said of both independent experts that their expertise and proper approach to their task was not in question.  It is not unusual for a court to be faced with differing opinions from acknowledged and respected experts in their fields.

47.  Mr Sherry submitted that in a case such as the present one, if the two independent experts disagree the court could, and in this case should, fall back on the opinion of the doctor who actually saw the plaintiff on the date of the DoR. Dr Yu is a respected psychiatrist and his opinion should, in these circumstances, carry the greatest weight.

48.  I do not agree with this approach.  It is Dr Yu’s opinion which is under scrutiny and the court should confront the task of balancing the experts’ opinions with care so as to, if possible, place reliance on one rather than the other.

49.  The two joint reports (dated 24 January 2015 and 30 July 2015) are detailed and cover a total of 55 pages.  Reciting lengthy extracts in this judgment would serve no useful purpose.  I have decided that it is Prof Mak’s opinion and conclusion which should be accepted in this case.  I will merely highlight the reasons for placing less weight on Dr Tam’s opinion and conclusions.

50.  Perhaps the high water mark of Dr Tam’s opinion comes in the second report where he says:

“Concerning Madame Chui’s mental capacity for the purpose of the EPA Ordinance at the time when she signed the Deed of Revocation, I opined that there was a chance that she could be capable:”

51.  As to her mental capacity at the times of the interview for the purpose of the report he said that her having the mental capacity to manage her own affairs was a possibility.  Thus, there was a “chance” in June 2014 and that chance was still a “possibility” in June 2015.

52.  His reasons for opining that “a chance” existed in June 2014 were criticised by Mr Wong SC on a number of matters.  First, Dr Tam said that weight should be attached to Dr Yu’s opinion because he had personally cared for the plaintiff for “several months”.  In fact, Dr Yu saw the plaintiff for the first time on 20 June 2014, the date of the DoR.  Dr Tam also commented that Dr Chung Tin Hei’s opinion should be taken seriously as he had been looking after the plaintiff for “months” whereas, in fact, Dr Chung had only seen the plaintiff twice in the previous month.

53.  Secondly, with regard to the MMSE results Dr Tam noted that the plaintiff had scored 18 in one of them which was “only one short of a pass” without balancing that against the fact that she had failed every test in 2014.  He also noted that in one test she had scored full marks in the language section without noting that the corollary of this was that she had scored only 5 out of 21 in the remaining five sections.

54.  Thirdly, in the second joint report Dr Tam commented on ‘improvements’ between the first and second assessment.  On analysis, this was not consistent with the test results.  In particular, her MMSE score had gone from 15 to 14.

55.  Fourthly, Dr Tam, when giving evidence used the expression that he was ‘second guessing’ the plaintiff’s mental capacity.  Whilst I acknowledge that such assessments are difficult tasks and far from an exact science and that an element of judgment based on experience is inevitable, I nonetheless prefer Prof Mak’s description of the task, namely “a balance of the clinical probabilities based on all medical records”.

56.  Prof Mak made further observations, with which I agree, relating to Dr Tam’s conclusion, to which I now turn.

(iii) Professor Mak

57.  Prof Mak’s disagreement with the conclusions of Dr Tam and Dr Yu was unequivocal.  In the second report she said there were no grounds to alter or amend her opinion given in the first report which was that:

“Md. Chui suffered from and is still suffering from Dementia of the Alzheimer’s Type.

Md. Chui did not have the mental capacity for the purpose of the Enduring Power of Attorney Ordinance (Cap. 501) as at the time when she signed her Deed of Revocation on 20 June 2014 by reason of her:

· Having no recollection of having signed an EPA;

· Impairment of recent memory;

· Lack or orientation to date and place;

· Impairment of attention and calculation;

· Not being to recall that she lost a great deal of money; and

· Not knowing the details of her bank accounts.

Md. Chui did not have the mental capacity for the purpose of the Enduring Power of Attorney Ordinance as at the date of the joint medical examination (20 November 2014) by reason of her:

· Impairment in orientation to date and place;

· Inability to recall anything related to signing the EPA and its revocation;

· Impairment of recent memory;

· Impairment in abstracting thinking, concentration, numerical skills, comprehension, visual spatial skills and attention;

· Inability to identify the daughter‑in‑law who accompanied her to the joint interview;

· Inability to give the names of her step‑children apart from one;

· Inability to give details of her siblings; and

· Inability to understand her financial situation.

I disagree with the opinion of Dr. Yu Wai Tak, Dr. Chung Tin Hei and Dr. David Leung.”

58.  Her criticisms of Dr Yu’s certification at the time of revocation included (i) that he examined her in the presence of her relatives which she described as “an elementary error”, (ii) he only carried out a small part of the MMSE test, namely orientation whereas the real issue was “memory” which was not tested, (iii) he did not clarify her true understanding or knowledge of an EPA and its effects, (iv) he placed weight on her description of her daily routine as evidence of mental capacity whereas, in fact, it was of little relevance because she never went out alone, (v) he did not consider her complete medical records, (vi) he appeared to overlook the fact that the plaintiff was unable to remember executing the EPA when considering her ability to revoke it, and (vii) he appeared to overlook Dr Raymond Chen’s diagnosis of dementia.

59.  The above summary of Prof Mak’s contribution to the joint reports barely does justice to the detailed, considered, cogent and persuasive analysis underlying her opinion and conclusions.

60.  Based on my assessment of the competing experts’ opinions, the factual evidence and the agreed medical history and records, in my judgment, the safe and proper decision, in all the circumstances, is to refuse the plaintiff’s application to confirm the deed of revocation.

61.  I make an order to that effect with a costs order nisi to the defendants. I also grant a certificate for two counsel.