TANG KAM SHEUNG v. TANG KIT YEE

HCA677/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 677 OF 2007

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BETWEEN

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DECISION

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1.  Pursuant to the directions of the Registrar made on 21 September 2009, the defendant’s summons issued on 15 September 2009 was referred to this court for determination by way of written submissions, which the parties had lodged on 18, 22 and 23 September 2009.

The action

2.  The plaintiff is an elderly lady born in 1925. She is a spinster. The defendant is her adopted daughter. They used to live together.

3.  The plaintiff had a fall on 4 December 2006, as a result of which she sustained injuries to her shoulder and was admitted to hospital. Upon the referral of the hospital, she has since being discharged from the hospital been residing in a residential centre for aged persons who suffer from dementia.

4.  The present action was commenced on 3 April 2007. The plaintiff claims that the defendant had misappropriated monies in three bank accounts, which are maintained either in her sole name or in the joint names of the plaintiff and the defendant.

5.  The Defence filed by the defendant is a short one. Principally, it raised two matters. First, it put into issue the mental capacity of the plaintiff to commence and/or carry on these proceedings on the ground that she has been suffering from dementia. Second, it averred that out of the relationship of the parties, the plaintiff had made financial provisions to the defendant.

Agreement to appoint a joint expert

6.  Subsequently, upon the suggestion of the defendant’s solicitors, it was agreed between the respective solicitors that Dr Chung See Yuen, a psychiatrist, be jointly appointed to make a report on the mental capacity of the plaintiff. As a result, Master Lung ordered, inter alia, on 22 May 2008 that: (1) A joint psychiatrist agreed by parties be appointed “to examine the plaintiff to assess her mental capacity for the proceedings”; (2) The proceedings be stayed until after the compilation of the medical report; and (3) A case management conference (CMC) be conducted before a judge.

7.  In connection with the order for the holding of a CMC, on 30 May 2009, I directed in my capacity as Listing Judge that: (1) Before fixing the CMC date, the parties should ascertain when the medical report will be available; and (2) If the plaintiff is confirmed to be mentally incapacitated, application under the Mental Health Ordinance or the assistance of the Official Solicitor should be sought as soon as possible.

8.  In due course, the defendant’s solicitors provided to the plaintiff’s solicitors a draft letter of instruction to Dr Chung (“Draft Instruction”) for comments. After some discussions, they are able to agree on the draft save in relation to paragraphs 18(2) to 18(4), which the plaintiff’s solicitors say should be deleted.

The defendant’s summons

9.  On 15 September 2009, the defendant issued a summons under Order 40, rule 3 of Rules of the High Court, applying for an order that the instruction to Dr Chung be settled by the court. The defendant’s solicitors have since accepted that Order 40, rule 3 is not engaged since Dr Chung is not the court’s expert; he is the parties’ single joint expert. By consent summons dated 22 September 2009, the parties apply to amend the marginal note of the summons to Order 38, rule 4A(3).

10.  I accept that the application ought to have been made under Order 38, rule 4A(3) and the proposed amendment to the summons is therefore in order. I make an order in terms of the consent summons.

11.  Turning to the main application, the differences between the parties relate to the questions on which the expert should be instructed to give an opinion. In summary, the parties agree that the expert should express an opinion on whether the plaintiff is now a “mentally incapacitated person” as defined in the Mental Health Ordinance, cap. 136 (as per paragraph 18(1) of the Draft Instruction). However, the plaintiff disagrees that the expert should be asked to express an opinion on: (1) The general psychiatric issues relating to the plaintiff; (2) The plaintiff’s capacity to give instructions for litigation; and (3) The plaintiff’s capacity to manage property and affairs (as per paragraph 18(2) to (4) of the Draft Instruction).

Preliminary observations

12.  Before dealing with the list of specific questions proposed under paragraph 18(2) to (4) of the Draft Instruction, it is important to first make three basic preliminary observations.

13.  The first relates to the plea in the defence that the plaintiff has no mental capacity to sue. In so pleading, the defendant is effectively disputing the authority to sue in the plaintiff’s name. It is established principle that a defendant who desires to question the authority to sue in the plaintiff’s name (as for example, where it is suggested that the plaintiff has no mental capacity to give instruction to sue), he ought to apply to strike out the plaintiff’s name and should not by defence dispute the authority; nor can he do so at the trial. Any doubt about the authority to sue should first be resolved before the action is allowed to proceed further: Richmond v. Branson [1914] 1 Ch 968; Kammy Town Ltd v. Super Glory Corp Ltd, unreported, HCA 3524/2003 (14 January 2005); and Hong Kong Civil Procedure 2009, vol.1 para.15/6/5 at p.241 & para.18/19/24 at pp.358-9.

14.  Accordingly, the defendant’s challenge to the plaintiff’s mental capacity to give instructions to bring the action should not be raised by way of defence. She ought to have taken out proper application for the question to be resolved before the action proceeds further.

15.  Secondly, it is clear from the solicitors’ correspondence that the plaintiff’s solicitors had provided to the defendant medical reports, which show the plaintiff had the necessary mental capacity to give instruction to commence the action. The plaintiff’s solicitors are however prepared to agree to an examination of the plaintiff to assess her present mental condition. Whether the plaintiff had mental capacity to give instruction to bring the action and whether the plaintiff has mental capacity to carry on the proceedings are two different issues. In light of the medical reports that the plaintiff’s solicitors have as to the plaintiff’s mental condition before and when this action was started, they are justified in limiting their agreement to the appointment of Dr Chung for the purpose of ascertaining the plaintiff’s current mental condition.

16.  Thirdly, if the expert were to find that the plaintiff does not now have or no longer has the necessary mental capacity to continue giving instructions to her solicitors, then under Order 80, rule 2 of Rules of the High Court, the action has to be stayed until a next friend has been appointed to act for her. More importantly, if Dr Chung found the plaintiff to be mentally incapacitated, it might be necessary to commence separate proceedings applying for the conduct of an inquiry under Part II of the Mental Health Ordinance, to see whether the plaintiff is, by reason of mental incapacity, unable to manage and administer her property and affairs and, if so, to appoint a committee of the estate under section 11. If this happens, then the committee will be in a position to decide whether to continue or how to continue with the claim against the defendant: see Ho Po Chu v. Tung Chee Hwa & Ors, unreported, CACV 206/2005 (19 January 2006), paras.62-68.

17.  When I gave the direction on 30 May 2009, I was having in mind the potential need of making an inquiry and/or appointing a committee to manage and administer the plaintiff’s estate. In my view, the first and most important concern is to ascertain whether the plaintiff is now mentally incapacitated within the meaning of the Mental Health Ordinance. This, however, should not be confused with the issue of the plaintiff’s mental capacity to give instruction to bring the action.

Paragraph 18 of Draft Instruction

18.  I now turn to look at the list of specific questions under paragraph 18 of the Draft Instruction.

19.  Paragraph 18(1): This question is agreed by both parties. Under section 2 of Mental Health Ordinance, “mental incapacity” means (a) mental disorder or (b) mental handicap, and “mentally incapacitated” shall be construed accordingly. Further, “mentally incapacitated person” is defined to mean: (a) for the purposes of Part II of the Ordinance, a person who is incapable, by reason of mental incapacity, of managing and administering his property and affairs; and (b) for all other purposes, a patient or a mentally handicapped person . Hence, the expert will be expressing an opinion on whether the plaintiff is presently suffering from mental disorder or mental handicap. The opinion will be a comprehensive one.

20.  Paragraph 18(2): Questions (a) and (c) are more relevant to the question of the plaintiff’s mental capacity to give instruction to bring the action. They do not relate to the current mental condition, save the part about the prognosis, which Dr Chung will no doubt touch upon when answering the question in paragraph 18(1). Similarly, Questions (b), (d) and (e) overlap with the question in paragraph 18(1). It is not necessary to pose these questions separately. As to Questions (f) and (g), they are outside the scope and the purpose of the appointment of joint single expert. The last question is in fact irrelevant and inapt for a psychiatrist.

21.  Paragraph 18(3): All the questions are only directed at the issue of the authority to sue in the plaintiff’s name. On the basis of the above analysis, they should not be put to Dr Chung.

22.  Paragraph 18(4): Questions (a) and (b) (with modifications to the language) will be relevant if an inquiry under Part II of Mental Health Ordinance becomes necessary. It is premature at this stage to ascertain whether the plaintiff is incapable, by reason of mental incapacity, of managing and administering her property and affairs. As to Questions (c) and (d), they are fishing for information. It is a misuse of the expert and the questions are plainly impermissible.

23.  In short, the questions under paragraph 18(2) to (4) should be deleted from the Draft Instruction. And I so order.

Costs

24.  The parties have agreed that the costs of and associated with the defendant’s summons (except the costs occasioned by the amendment to the summons which had been provided for in the consent summons) are to be reserved. I will order accordingly.