SZETO KWOK HUNG ROQUE v. SZETO KWOK KWONG BERNARD AND OTHERS

HCMP 2596/2017

[2021] HKCFI 2802

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2596 OF 2017

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DECISION

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1.  I refer to my previous Decisions (in particular those of 18 April 2018[1], 7 September 2020[2] and 2 December 2020[3]) for the background of the matter.

2.  This is the substantive hearing of the summons (the “P’s Summons”) taken out by the plaintiff (“P”) on 23 February 2021 for a number of different orders.

3.  §(5) of the Summons asked for inter alia the deportation of the counsel acting for the defendants (“Ds”).  On 18 March 2021 when P’s Summons first came before me for call‑over, I ordered that that paragraph be struck out.  That paragraph was plainly frivolous, vexatious, and constituted clear abuse of process.  I otherwise gave directions on the filing of evidence in support and opposition.

Ds’ summons (“Ds’ Summons”) for leave to file a further affirmation

4.  By summons of 2 August 2021, Ds seek leave to file and serve the 4^th affirmation of Mr Chan Cheung Ho (“CH Chan” and “Chan/4^th”).

5.  CH Chan is a partner of Messrs Bernard Wong & Co, solicitors for Ds (“BWC”).

6.  The purpose of Chan/4^th is principally to produce certain correspondence between the Official Solicitor’s Office (the “OS”) and Court, and between BWC and Messrs Howse Williams, solicitors for Canossa Hospital.

7.  I am satisfied that those correspondence are relevant.

8.  Whilst they could have been adduced earlier, they have been provided to P for more than one month.  I am satisfied that granting Ds leave to rely on Chan/4^th would not cause P prejudice.

9.  I allow Ds’ Summons. 

10.  Ds offer to, and I order them to, bear the costs of and occasioned by Ds’ summons.  I will come back to the question of costs later.

P’s Summons 

11.  I have considered P’s affirmation of 23 February 2021 filed in support. I have also considered the 5^th affirmation of D2 filed in opposition. 

12.  I will deal with each paragraph in P’s Summons in turn.  I record that in doing so, I do not have the benefit of any written submissions from P.

Paragraphs (1) and (4) of P’s Summons

13.  §§(1) and (4) of P’s Summons may be considered together.

14.  By those paragraphs, P seeks an order that:

“ (1) Paragraph 1.1.2 of the Order made on 18th April 2018 be varied to the extent to include the choice of hospital for [Mother] and nursing care arrangement and involved costs and expenses be paid by the three [Ds] in this Injunction Order.

…

(4) The two doctors Dr Lam Man Fai and Dr Yeung Yeung must be removed effective immediately from the medial team as they pose present and immediate danger to Mothers health and well‑being.”

15.  The relief sought via §1 of P’s Summons is identical to that which P sought by his summons of 27 August 2020, save that on that occasion, he asked that the costs be borne by the OS.

16.  For reasons set out in my Decision handed down on 2 December 2020, I dismissed P’s application made via his summons of 27 August 2020.  In particular, I ruled that “[allowing] the application would allow the plaintiff powers not just to override the views of his siblings but also that of the Guardianship Board”.

17.  Those reasons remain valid, and indeed more so now in light of the following matters.

18.  Placed before this Court now are the full terms of the Order made by the Guardianship Board dated 27 November 2020.  It was only certified on 4 December 2020, and hence was not available to this Court when I handed down the Decision of 2 December 2020.  That Order stipulates, inter alia, that:

“ …[Mother] be received into guardianship for a period of one year, commencing on 27 November 2020.

…

And the Guardianship Board further Orders that the Director of Social Welfare be appointed as guardian of [Mother] with the following powers, to the exclusion of any other person:-

(a) to require [Mother] to reside at such place as may be specified by the guardian. (s.59R(3)(a))

(d) to consent to medical or dental treatment on behalf of [Mother], but only to the extent that [Mother] is incapable of understanding the general nature and effect of such treatment. (s.59R(3)(d)).”

19.   On the jurisdiction of this Court, Mr Remedios has traced through a number of authorities which include section 12(2)(a) of the High Court Ordinance, Cap 4, Re CML (Mental Health) [2020] 3 HKLRD 481, per Lok J at §§18-33, LWY v Guardianship Board [2009] 3 HKLRD 30 at §28, Re L (Vulnerable Adults with Capacity: Court’s Jurisdiction) (No.2) [2012] 3 WLR 1439 at §70, and Re TBS [2019] HKCFI 2919 at §§51‑53.  He submits, supported by those authorities in my view, that insofar as matters which fall precisely within the ambit of the Mental Health Ordinance, Cap 136 (“MHO”) are concerned, there is no room for the invocation by this court of its inherent jurisdiction.

20.   Mother’s medical treatment, and the identity of the medical doctors giving her the same, fall within the ambit of the Guardianship Order (and in particular §§(a) and (d) thereof).

21.   As Mr Cheng on behalf of the OS has submitted, which I accept, this Court is not the proper forum to determine the issues that fall within the ambit of the Guardianship Board.  I accept his further submission that if P has valid basis for believing that he should act as the guardian of Mother in place of the Director of Social Welfare and take control of the arrangement for medical care and treatment, he can and should make application to the Guardianship Board, which has the power to obtain social investigation report and the relevant medical records of Mother.  If P remains dissatisfied with the decision of the Guardianship Board, he may then appeal to the Court of First Instance pursuant to section 59W of the MHO.

22.   In any event, the evidence before this Court does not support the application:

(a)   In the course of the hearing, P made submissions on the alleged inadequacies of the medical care which Mother had been receiving;

(b)   In particular, P made detailed submissions on what he said to be excessive dialysis that Mother had been subjected to (4 times per week instead of 3), causing her low blood pressure.  P said that he then did some homework on the adequacy metric and showed that the number of hours per session was almost 80 % excessive;

(c)   However, according to the medical report of 30 June 2021 of Dr Kelvin Ho produced by P, and as Mr Remedios pointed out:

“ …The medical condition of the patient improved from her critical condition to a slightly more stable condition lately.  The dialysis frequency was recently reduced from 5 to 4 times a week of 3 to 4 hours duration at each haemodialysis session since about 2 weeks ago …

   …

   …Therefore the current dialysis settings with frequency and regimen is adequate by judging Kt/V criterion alone.  The reduction of dialysis frequency may consider to reduce to 3 sessions a week if the blood pressure can be adequately maintained during the dialysis.”

(d)   Mr Remedios has also pointed to other medical reports which described the medical, nursing and allied health care Mother had been receiving as being optimal[4], or recommended the retention of the then current medical teams.

23.   For the above reasons, and in particular those set out in §§16 to 21 above, I dismiss §§1 and 4.

Paragraph (2) of P’s Summons

24.   By §(2) of P’s Summons, P seeks an order that:

“All previous rulings be striken [sic]out because of the lies and half‑lies by [Ds] and that of their mouthpiece their counsel.”

25.   P fails to specify which rulings are within the scope of §2.  He obviously does not actually mean “all”, else even the orders granting him the Injunction Order and those subsequent Orders continuing the same would also be caught.

26.   I agree with Mr Cheng that if P is seeking to appeal against the Orders made by the Mental Health Court and the Guardianship Board, this Court is not the appropriate forum.  If he seeks to appeal against any orders made in this action, he should follow the appropriate procedure in order to, as a start, seek leave to appeal out of time.

27.   §(2) is not only procedurally wrong, but is devoid of substantive merits.

28.   I dismiss §2.

Paragraph 3 of P’s Summons

29.   By §3 of P’s Summons, P seeks an order that:

“ [Ds] should be responsible to pay for all expenses (medical, nursing, supporting staff) from Sept 2014 onwards.”

30.   In HCMH 83/2018 and HCMH 28/2019, the OS was appointed the Committee of Mother’s estate with the powers of managing her property and financial affairs.  I accept Mr Cheng’s submission that any dispute between the Mother’s estate and other parties who claim to have paid medical expenses on Mother’s behalf falls within the jurisdiction of the Mental Health Court under Part II of the MHO (which governs matters relating to the “Management of Property and Affairs of Mentally Incapacitated Persons”).  If P has valid grounds for believing that Mother’s property has been mismanaged and that he should take control of her estate in place of the OS, he should make application to the Mental Health Court.

31.   I dismiss §3.

Paragraphs (6) and (7) of P’s Summons

32.   §§(6) and (7) of P’s Summons may be considered together.

33.   By those paragraphs, P seeks an order that:

“ (6)  … It is not clear that the [OS] is the best person to recover all that was taken by [Ds] from Mother … I ask for relief and time to find the best entity to help Mother.  In the meantime, I ask the Court to freeze the assets of the family’s companies and the private assets of all directors of the companies that once was under total control of Mother until there is an accurate account of the extent of treacheries of [D1] is fully known.

(7)  Mother promised to give me back the flat C11 … when I reached the age of seventy.  When I come back last time, C‑11 has been sold by [Ds].  I asked the Court to intervene to demand [Ds] to make amends and restitutions as what they did was willful to deceive to steal.”

34.   No basis whatsoever has been made out for any order freezing those “assets of the family’s companies and the private assets of all directors of the companies”.  If a Mareva injunction is what P is after, there are clear procedure for an applicant to follow, and well defined thresholds for an applicant to meet.  P has failed in both regards.

35.   Nor has P established any basis for any interlocutory and summary order for “amends and restitutions” in relation to the property which P claims Mother had promised to give him back.  If a summary judgment is what P is seeking, Order 14 of the Rules of the High Court and the related case law govern what P has to do and to establish.  P has failed to establish any case for one.

36.   §§(6) and (7) are procedurally wrong and are devoid of substantive merits. I dismiss the same.

Paragraph (8) of P’s Summons

37.   By §(8) of P’s Summons, P seeks an Order that Canossa Hospital be compelled to give:

“ … [P] and his new medical team … unimpeded assess of ALL medical files at Canossa Hospital … The request is important for [P] to be able to furnish the Court with evidences [sic] to assess the full situation to make an intelligent decision how best to provide the best help for Mother.”

38.   As Mr Cheng has submitted which is clearly correct, the Director of Social Welfare as the guardian of Mother has the authority to obtain medical records for the purpose of formulating the health and welfare plans for her. And as Mr Remedios has submitted which I also accept, this application is clearly not the right forum to deal with §8 where Canossa Hospital has not even been made a party herein.

39.   Further, P informed me in the course of the hearing that the social worker involved in the case has been helpful, and through that social worker’s assistance, P has obtained some useful information from the Canossa Hospital.

40.   I refuse §8.

Disposition

41.   For the above reasons, I dismiss P’s Summons in its entirety.

P’s further summons of 7 September 2021 (“P’s Further Summons”)

42.   Whilst P’s Summons is still pending, and less than two days before the present hearing, P filed P’s Further Summons.

43.   P’s Further Summons seeks materially the same relief as sought in P’s summons:

(a)   §§(1) to (3) thereof are the same as §§(1) to (3) of P’s Summons;

(b)   §(4) thereof asks for “restitutions for the pain and the sufferings exacted upon [Mother] since September 2014”.  Such relief is clearly outwith the scope of the present proceedings.  Nor has any basis been established for P to sue on Mother’s behalf for any of her alleged pain and sufferings;

(c)   §(5) is the same as §(4) of P’s Summons;

(d)   §(6) is similar to §(5) of P’s Summons, except that this time P asks for Ds’ counsel to be “dealt with by fines and remanded” as opposed to being deported;

(e)   §(7) is similar in scope to §(8) of P’s Summons, which relates to his access of the medical information kept by Canossa Hospital;

(f)   §(8) complains about Ds’ counsel having lied, and seeks the reversing of certain previous orders and that “the amount I had previously paid from my pocket be used to offset the Official Solicitor fees”; and

(g)   §(9) is the same and §(7) of P’s Summons, which relates to Mother’s alleged promise to give the property back to him.

44.   In support of P’s Further Summons, P filed an affirmation on the same day.  Various matters are gone into, including Mother’s medical conditions, how his siblings allegedly blackmailed their father, that Mother has been blacklisted by all private hospitals on the Hong Kong Island and who he claims are responsible for that.  Under what is in effect the concluding section of his affirmation, he asks inter alia that his siblings be remanded into custody and fined, that this Court to help to direct Canossa Hospital to allow him full access to Mother’s medical information, and for the reversal of certain ruling by this Court.

45.   Despite the lateness in which P’s Further Summons was filed, Mr Remedios and Mr Cheng were content that it be dealt with together with P’s Summons, and P be permitted to rely on his further affirmation.

46.   In my view, P’s conduct of taking out P’s Further Summons for nearly identical relief whilst P’s Summons is pending constitutes clear abuse of process.

47.   In any event, the discussions set out above in relation to P’s Summons equally apply to P’s Further Summons.  I need to add only these:

(a)   In respect of §(4) of P’s Further Summons, which is not in P’s Summons, I have observed above that P has not made out any basis why P can sue on Mother’s behalf for any of her alleged pain and sufferings.  As Mr Cheng submitted in the course of the hearing which I accept, P is in fact seeking to start a personal injuries action suing for Mother, which he has no basis to do;

(b)   In respect of §(8), and in respect of the OS’s fees, they have been dealt with before the Mental Health Court, and have been ordered to be settled by Mother’s estate;

(c)   In the course of the hearing, P accepted that Ds had not previously breached the Injunction Order, but claimed that they did when they caused Mother to be blacklisted by all the private hospitals on the Hong Kong Island.  He claimed that Mother had been incapacitated and could not have caused that herself, that P did not cause it, and by elimination, it must have been Ds who caused that.  In my view, the evidence adduced by P does not come close to establishing any breach by Ds.  The procedure for seeking an order to contempt also has not been followed.    

48.   For the above reason, I dismiss also P’s Further Summons.

Costs

49.   Mr Remedios seeks costs on an indemnity basis, with certificate for two counsel, to be taxed if not agreed, and payable forthwith.

50.   Mr Cheng indicated that the OS attended to assist the Court, and therefore does not seek costs.  I am grateful for his assistance.

51.   I have considered the nature of the relief sought by P.  They are all without merits.  Some of them are frivolous, outwith the action, and amount to abuse of process (§§2, 3, 5, 6, and 7 of P’s Summons in particular).  The filing of P’s Further Summons whilst P’s Summons is pending is also an abuse of process.  In my view, all the above constitute special and unusual features for an indemnity costs order to be made.

52.   Given the nature of the matter, I am however not satisfied that a certificate for 2 counsel is justified.

53.   I make a costs order nisi that P shall bear Ds’ costs of and occasioned by P’s Summons and P’s Further Summons on an indemnity basis, with certificate for one counsel, to be taxed if not agreed, payable forthwith.  The costs of Ds’ Summons (which Ds have to bear) should be dealt with and taxed at the same time, and may be set off against part of the costs which P has to bear.  The costs order nisi will become absolute in the absence of any application for variation within 14 days from the date of this Decision.