|
HCMH 60/2025
[2026] HKCFI 1589
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MENTAL HEALTH CASE NO 60 OF 2025
________________________
| |
IN THE MATTER of Part II of the Mental Health Ordinance, Cap.136 (“the Ordinance”) |
| |
and |
| |
IN THE MATTER of an alleged mentally incapacitated person WX |
________________________
| Before: |
Hon Leung J in Chambers (Not Open to Public) |
| Date of Hearing: |
9 December 2025 |
| Date of the Applicant’s Further Written Submissions: |
23 December 2025 |
| Date of the Official Solicitors’ Written Submissions: |
30 January 2026 |
| Date of Decision (By Paper Disposal): |
16 February 2026 |
| Date of Reasons for Decision: |
27 March 2026 |
________________________
J U D G M E N T
________________________
1. This court acceded to the ex parte application for an order pursuant to section 23 of the Mental Health Ordinance, Cap 136 (“MHO”). As indicated, I would explain my decision which I hereby do.
BACKGROUND
2. WX was born in the Mainland, married with 2 children who are minors. She is a holder of a Hong Kong Identity Card and has worked in the financial sector in Hong Kong for years.
3. In November 2024, ███████ WX fell into a coma state triggered by a sudden and serious brain condition while she was in Beijing. She has since been hospitalised and become totally dependent for care, including that being provided by her parents there.
4. On 28 February 2025, WX’s parents were appointed by the █████ People’s Court (“the Mainland Court”) as her guardians upon its declaring that WX lacks mental capacity to carry out civil acts (“the Mainland Court Judgment”).
5. WX has assets in a couple of banks and securities companies in Hong Kong with a value of at least █████.
6. On 4 July 2025, the mother (“the Mother”) commenced these ex parte originating proceedings for an order pursuant to section 23 of the MHO. In support, the Mother produced the medical certificates of 2 Hong Kong doctors[1], who examined WX at the hospital in Beijing in April 2025 and certified that she is also mentally incapable of managing her affairs and assets for the purpose of the MHO.
7. In addition to directing a hearing of the application to be fixed, this court set out in writing on 16 October 2025 various issues expected to be addressed for the purpose of the application.
8. At the hearing on 9 December 2025, this court adjourned the application to be disposed of on paper pending revised draft order and written submission from the Mother. So she did with copies to the Official Solicitor (“OS”) in late December 2025. By written direction dated 16 January 2026, this court indicated that the application would be determined once submission and comment by the OS have been received.
9. The OS lodged her written submission on 30 January 2026.
10. On 16 February 2026, this court directed that an order would be made in terms of the revised draft order as amended. Considering the discussion of the issues arising out of the application, this court indicated to the Mother and the OS that reasons for the decision would be handed down and published.
SECTION 23 OF THE MHO
11. Section 23 of the MHO provides:
“Transfer of property of mentally incapacitated person residing out of Hong Kong
Where any property situate in Hong Kong is standing in the name of or vested in any person residing out of Hong Kong, the Court, upon being satisfied that such person has been declared to be mentally incapacitated and that his personal estate has been vested in a committee, curator or manager according to the laws of the place where he is residing, may order some fit person to make such transfer of the property, or of any part thereof, to such committee, curator or manager or otherwise, and also to receive and pay over any proceeds or profits thereof as the Court may think fit; and any act done in pursuance of such order shall be valid and effectual for all purposes.” (underline added)
12. The court in Re LYO [2005] 3 HKC 201 (at §§43-46) gave the following explanation:
(1) The jurisdiction can only be evoked when a committee, curator or manager has been properly appointed according to the law of the place where the mentally incapacitated person resides.
(2) The foreign committee or curator has no authority to deal with immovable properties or title therein held in the name of the mentally incapacitated person situated here.
(3) The section 23 order is limited to directing some fit person to make transfer of the movable property as well as to receive and pay over any proceeds or profits of the property to the foreign committee or curator.
(4) It is the discretion exercised by the Mental Health Court (“MH Court”).
THE APPLICATION
13. By way of her affirmation in support, the Mother produced a copy of the Mainland Court Judgment which she deposed was made by the Mainland Court pursuant to Articles 28 and 30 of the 中華人民共和國民法典. She further deposed to her understanding that according to Articles 34 and 35, the Mainland Court Judgment confers on the guardians the authority to manage and to protect the rights and assets of WX.
14. The Mother sought authorization to her, as the guardian appointed by the Mainland Court Judgment, to receive and to control the assets and affairs respectively of WX in Hong Kong, and to exercise the beneficial right of WX in managing and investing her such assets (§1 of the originating summons).
15. In respect of the assets in Hong Kong in the name of WX, namely cash in banks and investments in securities companies, the Mother sought transfer of the balances standing in the accounts of WX to her as well as an order for the banks and securities companies to sell the investments in the accounts of WX as the Mother may instruct (§§2-5 of the originating summons).
16. In the directions dated 16 October 2025, this court put the solicitors for the Mother on notice that assistance would be expected at the hearing in respect of the following issues arising out of the relief sought in the originating summons:
(1) As an application pursuant to section 23 of the MHO, the pre-requisite is that there is property in Hong Kong in the name of WX, who is residing out of Hong Kong and has been declared to be mentally incapacitated, and that her personal estate has been vested in another person as committee, curator or manager according to the laws of the place where she is residing. The Mother is said to be such appointed person, which she has to properly prove by evidence not only such fact but also its legal effect as required by the section.
(2) Upon satisfied with (1) above, the MH Court may exercise the power conferred by the section, namely to order a fit person in Hong Kong to receive and pay over proceeds or profits or to transfer the property in the name of WX to the Mother as the appointed person outside Hong Kong. The fit person will be the transferor and the appointed person outside Hong Kong will be the transferee for the purpose of section 23.
(3) Section 23 does not confer power on the MH Court to authorise the fit person in Hong Kong to do anything tantamount to management of the property and affairs of WX in Hong Kong which a committee, if appointed, may have been authorized to do. Nor is the MH Court conferred the power to authorise the Mother as the appointed guardian outside Hong Kong to do so in Hong Kong.
(4) As such, the application concerning the receipt and transfer of the balance standing in the various accounts in the name of WX by a fit person in Hong Kong to the Mother as the appointed person outside Hong Kong may be entertained. The fit person in Hong Kong to be named to effect the receipt and transfer may be any person including a solicitor of those acting for the Mother.
(5) The application concerning authorizing the Mother to give instruction to the various entities to dispose of the securities in the account of WX as she sees fit would seem to exceed the ambit of section 23. If authorized, the applicant as the appointed person outside Hong Kong would have been acting as if she were a committee managing the assets, namely the investments, of WX in Hong Kong.
(6) The MH Court may not authorise the Mother to manage the properties and affairs of WX in Hong Kong by recognizing the Mainland Court Judgment as this is expressly excluded from the Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance, Cap 645[2]. If a committee has to be appointed in Hong Kong, this has to be applied for and enquiry made pursuant to the MHO, which is however not the application of the Mother.
17. In other words, this court had reservation about §1 and part of §§2-5 of the originating summons mentioned above. Indeed the OS expressed reservation similar to that in her written comment prior to the hearing as well.
18. For satisfying the MH Court that the order made by the court appointing the foreign committee or curator or manager or otherwise has legal effect as provided in section 23, it is prudent to provide a relevant foreign law opinion as evidence in support. At the hearing on 9 December 2025, solicitor for the Mother did tender a written Mainland legal opinion effectively confirming that the Mainland Court Judgment and the appointment of the parents of WX as her guardians in effect imposed on them duties similar to those of a committee appointed under the MHO in Hong Kong.
19. Subsequently, those acting for the Mother lodged their revised draft order removing the general authorization to her to manage the investments of WX in Hong Kong except for their outright sale and their proceeds to be transferred as permitted by section 23.
20. As to the appointment of the fit person to act as the transferor pursuant to section 23, this court has seen applications where a senior member of the solicitors’ firm acting for the applicant or a local relative or a long term colleague of the mentally incapacitated person was put forward to act as such. What was asked in the present application was different. The Mother intended the banks and securities companies having custody of the assets of WX to act as the fit persons effecting the transfer directly. Like the OS, whose submission in this respect is set out below, solicitor acknowledged the lack of jurisprudence in Hong Kong directly on who may be accepted as a “fit person” for the purpose of section 23.
21. Solicitor submitted that a “person” may be a natural person or a body corporate as generally construed pursuant to section 3 of the Interpretation and General Clauses Ordinance, Cap 1. This is not a real concern. The question is whether the person having custody or possession of the assets of the mentally incapacitated person may be directed to serve as the fit person for the purpose of section 23, and thus effecting the transfer directly, without appointing another person to receive and to transfer the assets or their proceeds of sale to the foreign committee, curator or manager.
22. Solicitor submitted that directing the persons having custody of the assets of WX to effect the transfer directly would ensure efficiency, which would be in the best interest of WX. The OS agreed, referring to Re LYO (above) where the court explained (at §§45-46) that section 23 empowers the court to make supplementary order to facilitate the administration of movable assets within the jurisdiction by a foreign committee, curator or manager. It was submitted that this envisages any order which would facilitate the transfer to the foreign committee or curator or manager.
23. The OS also found one instance of such direct transfer in England back in the days when the Lunacy Act 1890 was in force. Section 134 of the Lunacy Act 1890, in sufficiently similar terms to section 23 of the MHO, permitted the court to order some fit person to make transfer of the stock belonging to the lunatic or any part thereof to the person appointed for the management of the estate of the declared lunatic according to the law where he was residing. In Didisheim v London and Westminster Bank [1900] 2 Ch 15, the appellate court allowed the appeal by the curator appointed by the Belgian Court and made (at §§52-53) an order directing the bank in possession of the lunatic’s money and dividends to directly transfer them to the curator. This was similar to what the Mother was seeking in the present application.
24. If an order may be made to direct the person having custody or possession of the assets of a mentally incapacitated person to serve as the person effecting the transfer of such assets or proceeds under section 23, the remaining question is whether this is a fit person.
25. Solicitor submitted that the banks and securities companies in question should be accepted as “fit persons” for the purpose of section 23. The former are authorized institutions under the Banking Ordinance, Cap 155 as well as regulated by the Hong Kong Monetary Authority. The latter are authorized under the Securities and Futures Ordinance, Cap 571. The Fit and Proper Guidelines of the Securities and Futures Commission (January 2022) defines a fit and proper person as one who is financially sound, competent, honest, reputable and reliable. On this basis, these institutions in question should be accepted as fit persons for the purpose of section 23 of the MHO. The OS agreed and added that the 2 banks in question belong to the top tier of authorized banking institutions while the securities companies, in the absence of contrary indication, must satisfy the “fit and proper” criteria as to financial integrity, competence and reputation mentioned above as well as meeting the requisite capital and operational requirements.
DISPOSITION
26. Upon considering the further submissions on behalf of the Mother and the assistance rendered by the OS, this court was satisfied that the order sought by the Mother should be given. Hence an order in terms as finally revised.
FOR FUTURE PURPOSE
27. Appointing a senior member of the firm of solicitors acting for the applicant or alternatively a relative may still be straightforward options for the purpose of section 23. The reason is that the solicitor is an officer of the court involved in the application while a relative, if also a fit person, is expected to have provided his or her consent to act as the transferor.
28. The person having custody of the assets of the mentally incapacitated person is not heard in the ex parte proceedings. Therefore if an applicant is minded to seek an order like that in the present case, those acting for him or her should in the course of their inquiry with such persons about the state of the mentally incapacitated person’s assets in Hong Kong also consider ascertaining their stance and terms of effecting the direct transfer if so directed by the court. Their stance and terms of so acting should be made known to the MH Court and, where appropriate, set out in the order sought.
29. The court may impose terms in respect of report of completion of the transfer together with documentary proof.
30. Last, the foreign law opinion on the fact and effect of the appointment of the foreign committee, curator or manager is evidence in nature, and therefore should be adduced or exhibited by way of affidavit.
PUBLICATION
31. Those acting for the Mother have 14 days from the date hereof to give their comment on any need for redaction of any parts of these reasons before their publication.
| |
(Simon Leung) |
|
Judge of the Court of First Instance
High Court |
Ms. Wong Hui Shan Hazel of Deacons, for the applicant
The attendance of the Official Solicitor was excused
Written submissions by Deacons, for the applicant
Written submissions by Miss Melody Chui, of the Official Solicitor
[1] One of which is on the approved list under section 2(2) of the MHO.
[2] Section 5(1)(f)(iii) of the Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance Cap 645 provides that for the purpose of the Ordinance, a Mainland Judgment is an excluded judgment if it is given in proceedings for a determination as to whether a natural person is a person with no or limited legal capacity for performing civil acts.
|