RE FKS

HCMH 40/2020

[2021] HKCFI 1641

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MENTAL HEALTH CASE NO 40 OF 2020

_______________________

_______________________

_____________________

DECISION
(On Cross Examination)

_____________________

1.  The applicant herein (“A”) issued the ex-parte originating summons in these proceedings on 10 June 2020 for her to be appointed as the committee of her father FKS (“Father”) under Part II of the MHO.

2.  Father has a daughter A and two sons namely “P” and “D”.

3.  On 8 December 2020, this Court declared that it was satisfied that Father was incapable, by reason of mental incapacity as defined in MHO of managing and administering his property and affairs.  On the same day, leave was given for A’s brother D to join in these proceedings as a respondent to oppose A’s application.  Directions were then given for filing of further evidence and the Official Solicitor was directed to indicate his stance in A’s application and D’s opposition.

4.  On 26 April 2021, D issued a summons for A to attend the substantive hearing to be cross-examined on her affirmations filed herein (“Cross Examination Summons”).  The Cross Examination Summons was directed to be dealt with on paper.

The parties’ respective case

5.  In D’s 3^rd affirmation, he has set out his reasons why there should be cross-examination of A which include the following:

(1)   A together with his younger brother P had misappropriated Father’s assets including Father’s shares in a company (“JIL”), which owns a valuable factory in Dongguan, Mainland China;

(2)   A had misappropriated the legal fees paid by Father for D;

(3)   D has the right to challenge the integrity of A, in particular in relation to the income she received from JIL.

6.  To summarise, D has made allegations against A’s character based on (1) A’s alleged misappropriation of shares of JIL; (2) A’s alleged misappropriations of legal fees incurred by D and paid by Father for him; and (3) A’s alleged dishonesty about her income derived from JIL.  In short, D’s case is that A has not been truthful in the affirmations and that she is in breach of the duty to make full and frank disclosure, and further there will be a conflict of interest on A’s part if she were to be appointed the committee.

7.  A had denied D’s allegations in her 4^th affirmation and had made some counter allegations against D. 

Legal principles

8.  Order 38 rule 2(3) of the Rules of the High Court states as follows:

“In any cause or matter begun by originating summons, originating motion or petition, and on any application made by summons or motion, evidence may be given by affidavit unless in the case of any such cause, matter or application any provision of these rules otherwise provides or the Court otherwise directs, but the Court may, on the application of any party, order the attendance for cross-examination of the person making any such affidavit, and where, after such an order has been made, the person in question does not attend, his affidavit shall not be used as evidence without the leave of the Court.

(emphasis added)

9.  The jurisdiction to order cross-examination on affidavit is a matter of the court’s discretion which is unfettered. 

10.  Counsel Ms Lily Yu on behalf of A referred this Court to the Court of Appeal decision in Re Chao Tsao Yee [1998] 3 HKC 665 in which it was held that it was not necessary under section 7(2) of the MHO for the exact identification of all the assets, still less the assessment of their value to be made before a committee was appointed, if a person was declared to be of unsound mind and incapable of managing his own affairs.  In fact Rogers JA, as he then was, went on to state that

“… Indeed, I would go further. In proceedings under s 7, it seems to me to be totally unsuitable that what could be complicated trust actions should be embarked upon. Proceedings under s 7 of the Mental Health Ordinance are not suitable for expensive litigation, or litigation that may well become highly complex and extended. The purposes of the Mental Health Ordinance are to look after the interests of the person alleged to be mentally disordered and if extensive litigation is to be embarked upon the matter may only become worse and years may pass by before matters are finally resolved.”[1]

11.  This Court was further referred to Re LSMH, unrep, HCMP 869/2005, 23 December 2005.  In that case, the issues were (1) whether the court should appoint a committee in view of the meagre balances found in the bank accounts of the alleged mentally incapacitated person and (2) who should be appointed.  As seen in the judgment of Lam J, as he then was, in relation to issue (1) the evidence showed that at least there were two substantial withdrawals from the alleged mentally incapacitated person which merited further investigation, and there were disputes in relation to those transaction.  Lam J had pointed out that it was not appropriate for the court to resolve such dispute in the context of the Part II proceedings.

12.  As for the issue (2), the younger son of the mentally incapacitated person opposed to the appointment of the applicant LCK in that case.  Lam J had observed that that ordering cross-examination would be totally out of proportion for Part II proceedings:

“16. Whilst LCK may not be the best candidate, I am not satisfied on the evidence that he had deliberately tried to mislead the court and the experts. The opinions of the experts were confirmed by the independent expert engaged by the Official Solicitor. Quite rightly so, there has not been any cross-examination of the deponents of affirmations. Given the nature of the Part II proceedings and issues that I can properly decide at this stage, it would be totally out of proportion to permit cross-examination. However, it does not mean that I must accept the allegations of the younger son against LCK on their face value. Even in the absence of cross-examination, having regard to all the evidence filed, I am unable to accept the evidence filed on behalf of the younger son as sufficiently cogent to establish any mala fide on the part of LCK.”

Discussion

13.  D’s counsel Mr Edward MH Chan argued that the Re LSMH case is totally different from the present case in that the person appointed as committee in that case, namely LCK, was not the person against whom allegations of possible financial abuse was made, and that it was anticipated that the person appointed as committee would conduct investigation into any possible financial abuse.  Mr Chan pointed out that in contrast, in the present case, both A and D are subjected to allegations of financial abuse but only A insists that herself be appointed as committee.

14.  However, as pointed out by Ms Yu, what was submitted by Mr Chan was not correct in that in Re LSMH, the younger son who had opposed LCK’s appointment had advanced some allegations against LCK for attempting to get money from LSMR and trying to mislead the court and the experts.

15.  Each case will depend on its own facts.  As said, D’s case is that A had misappropriated the shares of JIL and also legal fees, and that she had not been honest about the income she derived from JIL and it was in respect of such areas that D wanted to cross examine A on.

16.  Having considered the circumstance of this case, I have come to the view that it is not appropriate for this court in the context of a Part II application to make any finding of fact as to whether or who is guilty of financial abuse or any impropriety in relation to Father’s assets.  The only question is for the court to decide at the substantive hearing is whether A is a fit and proper to be appointed in light of all the allegations of financial abuse made by A and D against each other, and whether there should be an independent person to be appointed.  As Lam J has said in Re LSMH, the matter can only be looked at broadly at this stage[2].  I am of the view that a decision can be reached on affidavit/documentary evidence in the present case and that it is not necessary to have cross examination. 

17.  Further, allowing cross examination will affect the length of the substantive hearing which will delay these proceedings.  A trial with cross examination will also increase substantially the costs involved.  It will take the matter totally out of proportions and such protracted litigation cannot be said to be in the best interests of the Father for whom the Part II application is made.

Conclusion

18.  In light of what is said above, the Cross Examination Summons is dismissed.  Costs of this application should be paid by D to A, to be summarily assessed.  A is to submit her statement of costs within 7 days and D to submit his list of objections within 7 days thereafter.  The costs are to be paid by D to A within 14 days upon summary assessment.

19.  I also give leave for this decision to be published and uploaded to the Legal Reference website, unless written objections with reasons are received by this Court within 7 days hereof.