NG KONG YEAM by his next friend NG CHUNG SAN v. FARLIM GROUP (CHINA) LTD AND OTHERS

HCA 2176/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2176 of 2011

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J U D G M E N T

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Background

1.  This is an appeal from the Order of Master M Wong dated 1 February 2016 removing Madam Kay Swee Pin (“Madam Kay”) as the next friend of the plaintiff (“Dato Ng”) and substituting it by Mr Ng Chung San (“Mr Ng”).  It is not in dispute that Madam Kay was the mistress of Dato Ng and had been cohabiting with him for nearly 30 years.  Mr Ng is a son of Dato Ng.

2.  This action began by way of a Writ of Summons endorsed with a Statement of Claim issued 21 December 2011.  The plaintiff Dato Ng originally sued in his own name against three defendants.  The Writ contained a Statement of Truth which bore the apparent signature of Dato Ng dated 16 December 2011.  The title of the Writ was slightly amended in respect of the 3^rd defendant’s name and was re‑filed on 12 March 2012.

3.  Defence and Counterclaim by the 1^st and 2^nd defendants was filed on 8 May 2012.  The plaintiff filed its Reply and Defence to Counterclaim on 25 June 2012 which also contained a Statement of Truth bearing the apparent signature of Dato Ng dated 25 June 2012.  Pleadings were eventually close by 24 August 2012.

4.  Email correspondence between Madam Kay and Mr Ng in August 2012 [1] showed that Madam Kay was aware that Dato Ng might have been suffering from mental incapacity since April 2012.  As of August 2012, Dato Ng was still living with Madam Kay in a condominium in Singapore.

5.  In July 2013, Madam Kay, Mr Ng and a daughter of Dato Ng (“Irene”) were engaged in email correspondence with regard to whether Dato Ng should remain with the care of Madam Kay in Singapore or whether he should be taken back to Malaysia to be taken care of by his wife and children [2]. Eventually, Dato Ng was taken back to Malaysia on 30 July 2013 and since then he has been remaining separated from Madam Kay.

6.  On 28 August 2013 however, a Consent Summons was filed for the joint application of the solicitors for the plaintiff (by his intended next friend) and solicitors for the 1^st and 2^nd defendants that Madam Kay be appointed as next friend of the plaintiff Dato Ng in this action.  Master Au‑Yeung (as she then was) granted the Order on 30 August 2013.  The application for appointment of next friend was initiated by a summons issued by solicitors for the plaintiff on 2 August 2013.  Given the condition of Dato Ng and his moving back to Malaysia since July 2013, it seems that solicitors for plaintiff must have received instructions from Madam Kay pursuant to a General Power of Attorney executed by Dato Ng in favour of Madam Kay in Hong Kong dated 5 August 2010.  There was no explanation as to why Madam Kay initiated this sudden move after Dato Ng separated from her.

7.  On 6 December 2013, the High Court of Malaya declared Dato Ng a mentally incapable person (“MIP”) and appointed a committee of four persons to administer the affairs of Dato Ng (“the Committee”).  Dato Ng has all together four children.  They were all made members of the Committee.  The Committee was empowered, inter alia, to act as next friend or guardian ad litem of Dato Ng in legal proceedings generally [3].

8.  By a summons dated 19 August 2015 issued by solicitors for Mr Ng as the intended next friend, Mr Ng applied for, inter alia, the following orders:

(1) Madam Kay be removed as next friend of the plaintiff;

(2) the Committee be appointed as next friend of the plaintiff in substitution of Madam Kay; and

(3) alternatively to (2), Mr Ng as a member of and duly authorized by the Committee be appointed as next friend of the plaintiff in substitution of Madam Kay.

9.  On 7 September 2015, a hearing took place before Registrar Ho wherein orders were made inter alia for the filing of affirmations in opposition by Madam Kay and the filing of affirmation in reply by the Committee thereafter.

10.  The substantive hearing of this application took place before Master M Wong on 1 February 2016 at the end of which it was ordered that:

(1) Madam Kay be removed as next friend of the plaintiff;

(2) Mr Ng as a member of and duly authorized by the Committee be appointed as next friend of the plaintiff in substitution for Madam Kay;

(3) plaintiff do have leave to make consequential amendments to the Amended Writ of Summons and Statement of Claim and to file and serve the Re‑Amended Writ of Summons and Amended Statement of Claim on or before 15 February 2016;

(4) there be no order as to costs between 1^st and 2^nd defendants and the plaintiff, between 1^st and 2^nd defendants and Madam Kay and between 1^st and 2^nd defendants and the Committee;

(5) there be no order as to costs between the plaintiff and the Committee;

(6) the Committee do bear their own costs of the Summons dated 19 August 2015 up to and including the hearing on 7 September 2015;

(7) Madam Kay do personally pay the Committee costs of the summons dated 19 August 2015 after the hearing on 7 September 2015 including today’s hearing with certificate for counsel, to be summarily assessed on paper;

(8) the Committee do submit and serve Statement of Costs for summary assessment on or before 15 February 2016; and

(9) Madam Kay do submit and serve the Statement of Objection for summary assessment on or before 29 February 2016.

11.  Madam Kay now appeals against the Order of Master M Wong by way of her Notice of Appeal dated 15 February 2016.

Relevant legal principles

12.  In SX v LW and others (unreported) HCMC 8/2011, Mimmie Chan J said at paragraphs 7 and 8:

“7. Whether it is a case of a fresh appointment, or a change in the appointment, of a guardian ad litem for a patient under disability, an important if not the paramount consideration of the court in the exercise of its discretion must be the protection or safeguarding of the patient’s interests in the action.

8. Even if it is to be accepted that impropriety does not have to be established in this case, and that a distinction can be made between the removal of a guardian on the ground of impropriety, and a change in the appointment for reasons other than impropriety, the onus is on F — as the party making the application for his appointment as guardian in place of the Official Solicitor who has been appointed by the court — ‌to establish to the satisfaction of the court that he is a fit and appropriate person to be appointed as guardian for the Husband in this case.”

13.  In Moral Luck Finance Ltd v Law Kin Leung (2015) 18 HKCFAR 343, Ribeiro PJ said at paragraphs 20 – 21:

“20. Upon filing such documents in the Registry, Madam Cheung would, in accordance with O.80 r.3(6)(c), have been entitled to appear as Mr Law’s guardian ad litem without any application to the Court. The statutory procedure is obviously designed to avoid unnecessary satellite litigation over mental capacity in ordinary cases involving persons under disability.

   21. I might add in passing that the assumption by a next friend or guardian ad litem of that role without prior inquiry by the Court may of course not be final.  If, for instance, it is subsequently discovered that the person assuming the role is not acting in good faith or is otherwise unsuitable, or indeed, for any other good reason, the Court may appoint someone else in substitution for the person previously assuming the role. ...”

As a footnote to paragraph 21, Ribeiro PJ quoted the provisions of Order 80, rule 3(4) which reads:

“Where a person has been or is next friend or guardian ad litem of a person under disability in any proceedings, no other person shall be entitled to act as such friend or guardian, as the case may be, of the person under disability in those proceedings unless the Court makes an order appointing him such friend or guardian in substitution for the person previously acting in that capacity.”

14.  It is thus clear that the burden is on Mr Ng to establish that there are good reasons for removing Madam Kay.  Mr Ng also has to establish that the Committee is a fit and proper “person” or alternatively, he himself is a fit and proper person to act as the protector of Dato Ng’s interest.

15.  In Nalder v Hawkins (1833) 2 My & K 243, Lord Chancellor Brougham said at page 249:

“The true and the just principle which should govern all such cases is this. No discouragement ought to be thrown in the way of persons bonâ fide suing as next friends; but no undue facility should be given to mere volunteers, who interfere rather for their own purposes than for the [infant’s] advantage. While they appear to act bonâ fide they will be protected; the presumption will rather be in their favour; the proof will rather be thrown upon those who impeach their motives; the leaning will be more for than against them. But no strained presumptions will be made to protect them; no forced constructio[n]s will be put on their conduct; no benefit from bare possibilities will be conjured up in their behalf. They must be content to have their motives appreciated and their acts judged like other parties. If they have involved themselves in suspicion, their proceedings must be subjected to inquiry; if they have incurred just blame, be it by improper interference, or be it by unnecessary interference, they must abide the consequences; the suit at their instance must be stayed; or if the suit be useful to the infant, but the parties instituting it be unfit to conduct it, they must give place to others in whom the Court can better repose confidence.

  It follows that every such case must depend upon its circumstances; nor will the Court even order an inquiry unless just cause of suspicion exists. ...”  [my emphasis]

After considering the facts of that case, Lord Brougham concluded that there existed features that “excited watchful attention” and which gave birth to suspicion enough to call for full inquiry.  His Lordship thus directed a full enquiry as to whether the then next friend was a fit and proper person to be continued as next friend.

16.  These are the legal principles upon which I would approach the factual issues before me.  In my view, it is not very meaningful to attach too much emphasis on the so‑called “presumption in favour of the existing next friend”.  It is just a different way of saying that I should not exercise my discretion to remove and substitute her for another unless there are good reasons to do so.  I must bear in mind that the original appointment of Madam Kay was made by way of a Consent Order between her and the 1^st and 2^nd defendants.  The application was made by Madam Kay just three days after Dato Ng was entrusted to the care of his wife and children in Malaysia.  It was not a contested application and Master Au‑Yeung was not presented with any adversarial arguments.  Since the overriding consideration is the protection or safeguarding of the patient’s interests in the action, a good reason will exist if I find, on the evidence now presented, that the Committee and/or Mr Ng is a more fit and proper person on which the court can better repose confidence.

The competing grounds

17.  Mr Chau, counsel for Madam Kay, made the following submissions:

(1) There is no evidence to show that Madam Kay has acted in bad faith and there is no suggestion that Madam Kay had failed to prosecute this action with due dispatch.  Mr Ng’s challenge is merely on her character and suitability.

(2) Mr Ng is not a fit and proper person for the following reasons:

(i) The fact that he is a member of the Committee does not elevate his suitability.

(ii) Mr Ng made no complaint about Madam Kay until he changed his stance in 2015.  He now wrongfully accused Madam Kay of having abandoned Dato Ng.

(iii) The Committee had clearly stated that it could not work with Madam Kay, yet Madam Kay is obvious the most important factual witness in support of the plaintiff’s case.

(iv) Mr Ng has provided the defendants with ammunitions for challenging the plaintiff’s case.  He told the defendants that the Statements of Truth purportedly signed by Dato Ng might have been forged by Madam Kay.  He also provided a Statutory Declaration of Sum Chong Mun (a Singaporean lawyer) to the defendants to show that Madam Kay had forged the signature of Dato Ng in a Lasting Power of Attorney (“the LPA”). There was also an apparent “joining of force” in smearing the character of Madam Kay.

(v) At one stage, Mr Ng offered Madam Kay a percentage over the judgment sum that could be recovered in this action as a reward for her service.  This was champertous and the integrity of Mr Ng is in doubt.

(3) Madam Kay is clearly more fit and proper to act as the next friend.  She has full knowledge of the underlying facts giving rise to this action and she is the only factual witness for the plaintiff’s case.

(4) Madam Kay has filed a challenge to the composition of the Committee which is currently pending a hearing at the appellate court in Malaysia.

18.  On the other hand, Mr Lau submitted that Madam Kay is not a suitable person for the following reasons:

(1) The Committee was duly appointed by the Malaysian High Court.  Its members are the four children of Dato Ng who have thus close relationship with the plaintiff.  In comparison, Madam Kay had willfully abandoned Dato Ng well back on 30 July 2013.

(2) There is evidence that there exist some financial disputes between Dato Ng and Madam Kay; a dispute on who owns the Singaporean condominium and a company named SA Tours; and a dispute on who owns the stake in a company named Natwest Holdings [4].

(3) There is prima facie evidence of a possible conflict between Madam Kay and Dato Ng on the interest in Natwest Holdings.  After the appointment of the Committee, it wrote to Madam Kay making enquiry as to the purported transfer of shares in Natwest Holdings from Dato Ng to Madam Kay [5].  Madam Kay however refused to provide response [6].

(4) Madam Kay has provided no justifiable reason for insisting to act as the plaintiff’s next friend in this action despite:

(i) the Malaysian Court Order giving a general appointment of the Committee as next friend or guardian ad litem of Dato Ng;

(ii) her relationship with Dato Ng had irretrievably broken down; and

(iii) the fact that if she genuinely wishes to advance the interest of Dato Ng in the action, she could still act as a factual witness in support of the plaintiff’s case.

(5) Madam Kay is of untruthful character:

(i) there is credible evidence to show that Madam Kay had forged the signature of Dato Ng in the LPA;

(ii) there is credible evidence to show that Madam Kay had forged the signature of Dato Ng in the Statements of Truth filed in this action;

(iii) Madam Kay had been found by the Singaporean Court to be an unreliable witness in Kay Swee Pin v Singapore Island Country Club and others [2010] 4 SLR 288; and

(iv) Madam Kay lied in her affirmation when she said that she and her daughter (“Eva”) had not made use of the forged LPA for their benefit [7]. In fact, Eva had used the forged LPA to cause the transfer of money from Dato Ng’s bank account to her own bank account.  Eva was subsequently ordered by the Singaporean District Court to return the sum of S$506,361.20 to Dato Ng [8].

(6) Madam Kay is of litigious character and had launched a series of unmeritorious lawsuits [9]:

(i) On 19 April 2013, Madam Kay sued the wife of Dato Ng and another third party for the return of RM$5.5 million. The claim was dismissed on 31 May 2013.

(ii) Following the dismissal of the above proceedings, Madam Kay filed a complaint to the Bar Council against the wife of Dato Ng who was a joint partner with Dato Ng in a law firm. The said complaint was also dismissed on 13 September 2014.

(iii) On 5 July 2013, Madam Kay caused Natwest Holdings to sue Mr Ng and his wife in Kuala Lumpur purported for the return of a loan.  The claim was dismissed after trial in which Madam Kay gave evidence.  Madam Kay caused Natwest Holdings to lodge an appeal which was again dismissed on 27 August 2014.

(iv) On 31 July 2013, Madam Kay and Eva sued the wife of Dato Ng for defamation.  The lawsuit was again dismissed on 30 June 2014.

(v) On 19 May 2014, Eva applied to the High Court in Johor Bahru, Malaysia to be Dato Ng’s litigation representative in the action mentioned in (i) above.  This was despite the Committee having been formed and granted the right to be Dato Ng’s next friend in all legal proceedings.  The application was dismissed on 17 May 2015.

(7) These litigations instigated by Madam Kay also show that she has been taking an antagonistic attitude towards the lawful family members of Dato Ng who have been entrusted by the Malaysian court with the task of protecting the interest and affairs of Dato Ng. [10]

Discussion

19.  First of all, it is rather unfortunate that the incident in July–August 2013 had been described by Mr Ng as “Madam Kay wilfully abandoning Dato Ng”.  I have read the relevant emails exchanged and I am of the view that this description may be a bit too harsh on Madam Kay.  What I can gather is: Dato Ng was observed with signs of dementia around April 2012 which he refused to acknowledge.  Madam Kay was under great stress in taking care of and handling Dato Ng.  She expressed her emotion to Irene, the daughter of Dato Ng.  The emails exchanged between Irene and Madam Kay were cordial.  There were discussions on how to best handle the health problem of Dato Ng.  Eventually Mr Ng and Irene were prepared to take care of Dato Ng and bring him back to his family in Malaysia.  Madam Kay would not wish to put up a fight but pointed out that if Dato Ng should leave her care, it should be for good. In other words, she would not want a pendular situation.  In one of her emails, she said that Dato Ng would never on his own accord agree to leave Singapore and move back to Malaysia.  She pointed out that if the children find that it was in his interest to do so, it had to be done on a “cold turkey style”.  Unfortunately, parties became more and more emotionally charged as things developed.  This is all too common in cases involving family affairs.  At one stage, Dato Ng demanded to return to his Singapore home and Mr Ng felt obliged to placate him.  On the other hand, Madam Kay felt that if the children had taken the decision to resume care and attention of Dato Ng, the latter should not be dumped back onto her when problems arose.  It ended up in a rather unhappy event on 15 August 2013 when Mr Ng and Dato Ng sought to return to the latter’s home in Singapore.  They were refused entry and police was called to the scene.

20.  I am not here to judge who was in the right and who was in the wrong. Mr Ng felt Madam Kay had abandoned his father.  Madam Kay felt that she was right in shutting them out: a decision had been taken and Mr Ng should just stick to it.  Either party may have their own justification for so believing.  What matters, in my view, is the fact that there was since August 2013 an apparently irretrievable breakdown of relationship between Dato Ng and Madam Kay.  Madam Kay had clearly prepared to walk a separate way from that of Dato Ng.  In one email, she emphasized that under no circumstances should Dato Ng be brought back to Singapore.  The incident on 15 August 2013 showed that she meant what she said.

21.  The rhetorical question left behind is: given the breakdown of relationship; given the fact that Dato Ng had returned to the care of his wife and children in Malaysia; and given that the Malaysian High Court had appointed the Committee to take care of the interest and affairs of Dato Ng, why is Madam Kay still insisting on acting as the next friend of Dato Ng in these Hong Kong proceedings?

22.  I now turn to the evidence relating to the personality of Madam Kay.  I will deal firstly with the allegation of forgery.  It is not in dispute that Madam Kay was armed with the LPA which was registered on 16 February 2012.  Mr Lau referred me to a handwriting expert report [11] which concluded that it was “highly unlikely” that the purported signature of Dato Ng on the LPA was actually written by Dato Ng.  This report was not an unqualified one.  The expert acknowledged that he was not given the original LPA for examination.  It is common knowledge, at least for the court and lawyers, that examination of the original is far preferable because the expert can then examine the pen pressure and line quality under magnification.  Despite the lack of opportunity of examining the LPA, the expert was nonetheless able to form his opinion because he found the signature on the LPA copy to exhibit poor line quality, stiff strokes and lack of fluency as well as significant difference in the height and spacing of strokes.  Albeit not conclusive, it is credible evidence of a forgery on the LPA.

23.  The handwriting expert evidence is corroborated by the Statutory Declaration of Mr Sum Chong Mun, a Singaporean lawyer who attested the execution of the LPA[12].  Mr Sum is acquainted with Ms Kay Swee Tuan, the sister of Madam Kay who is also a lawyer in Singapore.  Ms Kay presented the LPA (apparently already executed by Dato Ng) to Mr Sum and asked him to serve as the prescribed certificate issuer of Dato Ng’s lasting power of attorney.  Since the LPA was not executed by Dato Ng in front of Mr Sum, he originally declined the request.  Ms Kay then gave him various assurances including the assertion that Dato Ng had executed the LPA in her presence.  Ms Kay represented that she could not stand as a witness because she was the sister‑in‑law of Dato Ng and the donees were the wife and child of Dato Ng.  Eventually, Mr Sum acted upon Ms Kay’s assurances and bent his professional rules.  He thought he was doing a favour to a fellow member of the profession.  He received no reward for so doing.  Subsequently, in or about August 2013, he received a telephone call from the police asking questions about the LPA.  A meeting was then held between Mr Sum, Ms Kay and Eva.  During the meeting, Ms Kay told Mr Sum for the first time that Dato Ng has a legitimate family; that Madam Kay is not married to Dato Ng; and that Eva is not a legitimate child.  Ms Kay also admitted that she did not actually witness Dato Ng’s execution of the LPA and that Madam Kay had in fact forged the signature of Dato Ng on the LPA.  Ms Kay apologized to Mr Sum and said she would accept full responsibility.  After the meeting, Mr Sum wrote to the police relating the whole incident.  In the Statutory Declaration, Mr Sum expressed his deep regret and voluntarily made the solemn declaration.

24.  Mr Chau referred me to Re Chime Corporation Ltd (unreported) HCMP 4146/2001 for the proposition that dispute of facts cannot be resolved upon affidavit evidence and should be resolved following cross‑examination.  He also submitted that the Singaporean police had eventually concluded that no further action would be taken against Madam Kay.  With respect, his submission failed to recognize firstly that the police’s decision to prosecute or not to prosecute Madam Kay is neither here nor there as it is a decision possibly based on a variety of factors.  Secondly, he failed to recognize the admission Madam Kay made in an affirmation filed by her in a Singaporean action which related to the validity of the LPA.  In that affirmation[13], Madam Kay admitted that the purported signature of Dato Ng on the LPA was actually signed by her.  Madam Kay then tried to excuse her conduct by saying that Dato Ng had previously agreed to give her a power of attorney.  Eventually, Madam Kay accepted that the LPA was invalid and agreed to a Singaporean court order directing the de‑registration of the LPA[14].  Furthermore, the Statutory Declaration was exhibited to the 2^nd affirmation of Mr Ng in this application.  Madam Kay did not seek to file affirmation to challenge any statement made by Mr Sum in his Statutory Declaration.  At the very least, the Statutory Declaration constitutes prima facie evidence which remains unchallenged by Madam Kay.

25.  Related to this LPA is Madam Kay’s assertion in her affirmation filed in this application that she and her daughter Eva had not made use of the LPA for their benefit [15].  This statement is demonstrably false.  It can be seen from a court order made by the Family Court of Singapore and related bank statements[16] that on 5 November 2013, Eva used the LPA to transfer a sum of S$506,361.20 from the bank account of Dato Ng to an account named “Donee of Dato Ng”.  On 13 January 2014, Eva transfer a sum of S$507,146.39 from the aforesaid account to a bank account in her own name. After a contested hearing, the Singaporean court ordered Eva to return the sum of S$506,361.20 and accrued interest to the bank account of Dato Ng.  Madam Kay and Eva were also ordered to file affidavits to provide a full and proper account of decisions made by them in relation to the property and affairs of Dato Ng.  Mr Chau could not provide an explanation for the apparently false statement made by Madam Kay in her affirmation.

26.  Apart from the LPA, Mr Ng also exhibited another handwriting expert report on the purported signatures of Dato Ng on the Statements of Truth contained in the Statement of Claim and the Reply and Defence to Counterclaim filed in these proceedings[17].  The same expert equally concluded that it is “highly unlikely” that those signatures were made by Dato Ng.  This forensic report was exhibited to the 2^nd affirmation of Mr Ng.  Again, Madam Kay did not seek to file an affirmation to challenge the contents and conclusion of this report.

27.  In the circumstances, I am of the view that I am entitled to give due weight to the evidence presented in support of the allegations of forgery against Madam Kay.  I am not conducting a trial on affidavits.  However, I should not turn a blind eye on clearly credible evidence which Madam Kay has not adequately challenged.  This evidence is relevant to the integrity of Madam Kay.  It is relevant to whether this court can repose confidence on her.

28.  Still on the character and integrity of Madam Kay, Mr Lau referred me to the reported decision of the Singaporean High Court in Kay Swee Pin v Singapore Island Country Club and others, ibid [18].  It was a claim brought by Madam Kay against the club for libel by posing notices in the club premises that Madam Kay had lied about her marital status.  The judge ruled that the club was justified in posting the notices because their contents were true: Madam Kay was indeed not married to Dato Ng whom she had declared as her spouse when she applied to join the club in 1992.  The judge also ruled that the declaration filed by Madam Kay was deliberately false and that the conduct of Madam Kay was dishonest.  The judge also pointed out that Madam Kay was not a reliable witness.  Neither Madam Kay nor her counsel has provided any meaningful response to this incident that surely reflects on the character and integrity of Madam Kay.

29.  As for the series of litigation launched by Madam Kay against the family members of Dato Ng between April and July 2013, again Madam Kay has not attempted to file affidavit evidence to challenge Mr Ng’s renderings of those litigations.  In my view, they demonstrate (i) a propensity on the part of Madam Kay to bring and pursue unmeritorious claims; and (ii) an animus of acrimony against the family members of Dato Ng, most of which are now the Committee members placed in charge of the interest and affairs of Dato Ng.  It is again relevant to whether this court should entrust the running of and decision making involved in this action to Madam Kay.  It is relevant to whether this court can repose confidence in Madam Kay that she would duly conduct this action solely with the interest of Dato Ng in mind.

30.  Mr Lau also referred me to evidence of the existence of financial disputes between Dato Ng and Madam Kay.  In relation to the ownership of the condominium in Singapore, the email from Mr Ng to Madam Kay in August 2013 [19] recorded that Dato Ng repeatedly claimed that the property belong to him.  On the other hand, Madam Kay’s reply email [20] asserted that the condominium belong to her.  The same applies to the ownership of SA Tour in the same chain of emails.  As for the shares in Natwest, the existence of dispute is evidenced by emails [21] and formal demand letters issued by the Committee on 22 April 2015 [22] and by the Committee’s lawyer on 14 September 2015 [23].  Prior to the transfer of 799,999 shares in Natwest on 1 November 2010, those shares were registered in the name of Dato Ng.  The said transfer was purportedly made by Dato Ng to Madam Kay for a consideration of S$1 million.  The transfer form was purportedly signed by Dato Ng and witnessed by Eva.  It is not in dispute that Madam Kay did not reply to those letters which called upon her to provide information about the purported transfer.  Again, I am not called upon to resolve these financial disputes.  Their existence, however is relevant to whether the Committee (or its authorized representative Mr Ng) or Madam Kay is more suitable to be entrusted with the interest and affairs of Dato Ng.  Mr Chau submitted that the fact that Mr Ng is a member of the Committee does not elevate his position on the issue of suitability.  I disagree.  The Committee has been appointed by the Malaysian High Court as the body that should be entrusted with the obligation of protecting and safeguarding the interest and affairs of Dato Ng.  Under a general principle of comity (which was adopted by the English Court of Appeal in Didisheim v London and Westminster Bank [1900] 2 Ch 15 at 51) this court should respect the decision of the Malaysian High Court unless there is good reason not to.  As part of the appointment, the Malaysian High Court ordered that the Committee would stand as next friend / guardian ad litem in respect of all litigations involving Dato Ng generally. Although this order has no binding effect on this court, it must be a relevant factor in deciding whether the Committee or its authorized representative would also be a fit and suitable person to be appointed as the next friend of Dato Ng in the Hong Kong action. One obvious advantage is that the same body is entrusted to protect and safeguard the interest and affairs of the MIP wherever the need arose.  This must be in the overall interest of the MIP.

31.  Furthermore, all four members of the Committee are natural issues of Dato Ng.  Although Madam Kay cannot be said to be a stranger or a volunteer, having cohabited with Dato Ng for early 30 years, the position must be viewed in the context of the breakdown of relationship in July – August 2013.  Since then, Madam Kay cannot convincingly suggest that she has remained close to Data Ng in contradistinction with the children of Dato Ng who are now taking care of him.

32.  This brings me back to the rhetorical question that I posed earlier: why is Madam Kay insisting on retaining the role of next friend of Dato Ng in the Hong Kong action?  The only explanation offered by Madam Kay and her counsel is that she is conversant with the factual background of the action; that she is the only factual witness for the plaintiff case; and that the Committee had intimated that it could not “work with Madam Kay”.  The last point was repeatedly stressed by Mr Chau as a good reason to keep Madam Kay at the helm.

33.  With respect, the attitude of the Committee should be understood in its proper context.  In expressing that sentiment, the Committee was explaining why Madam Kay should be replaced.  What I understand it to mean is: if Madam Kay is allowed to have the conduct of the action, they would not find it possible to work with her.  In a way it is understandable given the obvious acrimonious relationship.  What the Committee did not say is that they do not want Madam Kay’s assistance as a factual witness.  Even if the Committee (or its representative) is appointed as the next friend, further conduct of the action would involve the intermediary of legal professionals.  If Madam Kay is genuinely hoping to advance the interest of Dato Ng in this action, there is no reason why she could not render her assistance in the form of a factual witness (see the same observation by Mimmie Chan J in SX v LW and others, ibid, at para 26).

34.  As for Mr Chau’s other attacks on the suitability of Mr Ng, he first relied on what he described as “change of stance” and “delay in making the application”.  Mr Ng explained that it was due to a successive enfolding of events and revelation of more questionable conduct on the part of Madam Kay.  I agree with Mr Ng and find no merit in the submission of Mr Chau.

35.  Mr Chau further criticized that Mr Ng had supplied the defendants in this action with ammunitions for challenging the plaintiff’s case: telling the defendants that the Statements of Truth purportedly signed by Dato Ng might have been forged by Madam Kay.  Mr Ng also provided them with the Statutory Declaration of Mr Sum.  Mr Lau argued that these information were pertinent not to the merits of Dato Ng’s claims but were merely relied upon by the 2^nd defendant to challenge the validity of the appointment of Madam Kay as next friend.  In my view, these matters form the evidential basis of the Committee’s application to remove Madam Kay.  They would inevitably be revealed to the defendants anyway.  I do not see any substance in this complaint. Furthermore, the 2^nd defendant was entitled to express the views of the defendants in respect of this application.  I do not see cogent basis for saying that they are “joining force” with the Committee.

36.  The last point of Mr Chau is to rely on an email of Mr Ng dated 10 March 2012 [24] and questioned his integrity.  In this email Mr Ng thanked Madam Kay for her update on the progress of the action and her candid discussion over the business affairs of Dato Ng.  Mr Ng referred to the power of attorney given by Dato Ng to Madam Kay that allowed her to represent Dato Ng in this action.  Mr Ng expressed appreciation of the efforts made by Madam Kay in helping Dato Ng to pursue this action and said:

“... and compensation for your effort is only fair, I cannot speak for my father at this stage, but should the matter be handed to me (for instance, should he be declared mentally unfit by the court and his affairs are handed to me to manage by the judge), I for one will recognize this fact.

As discussed today, we have agreed that your entitlement is 25% of the proceeds from any beneficial settlement or successful claim regarding the case. In order to protect your interest and for your comfort, I suggest to formalize your entitlement in writing ...”

37.  Mr Chau submitted that this was potentially a champertous arrangement.  He said that although Madam Kay denied ever having agreed to such a champertous arrangement, the making of this offer cast a shadow on Mr Ng’s integrity.  Not only is Mr Ng a layman, he is also a Malaysian citizen.  I have not been presented with evidence or submission on whether “Maintenance and Champerty” remains an offence in Malaysia.  What it appears from the email is that Mr Ng obviously was not aware of any unlawfulness or illegality in making such an offer.  He even suggested to formalize the arrangement in writing to protect Madam Kay’s interest.  The offer was made in appreciation of the efforts and services of Madam Kay.  I accept the explanation of Mr Ng [25] that he did so naively.  I see no merit in this complaint either.

Conclusion

38.  By reason of the above analysis, I have grave doubts and reservations on the character and integrity of Madam Kay.  I am not satisfied that she is seeking to maintain her role as next friend of Dato Ng with a bona fide or benevolent motive of upholding and safeguarding the interest of Dato Ng.  I find that the Committee has discharged the burden on demonstrating that Madam Kay is not a suitable person on whom this court can repose trust and confidence in the conduct of this action on behalf of the plaintiff.  On the contrary, I am satisfied that Mr Ng, being the authorized representative of the Committee, is a fit and suitable person to assume the role of the next friend of the plaintiff in this action.  I would add that I accept Mr Lau’s submission that the outstanding challenge to the composition of the Committee pending in the Malaysian court is irrelevant.  If Madam Kay is successful in the challenge, she and Eva would be added as Committee members.  I accordingly uphold the decision of Master M Wong to remove Madam Kay and to substitute Mr Ng (as authorized representative of the Committee) as the next friend of the plaintiff in this action.  Paragraphs 1 to 5 of the Order of Master M Wong are thus maintained save that the date of “15 February 2016” in paragraph 3 be changed to “28 days after the date of delivery of this Judgment”.

Costs

39.  Madam Kay appeals against the order that she personally pay the Committee costs of the summons after the hearing on 7 September 2015.  Mr Chau submitted that Madam Kay is a “non‑party” within the meaning of section 52A of the High Court Ordinance (“HCO”) and the relevant procedure is governed by Order 62, rule 6A of the Rules of the High Court (“RHC”).

40.  Mr Lau argued that Madam Kay is not a “non‑party”.  He relied on the definition of “party” in section 2 of HCO which includes “every person served with notice of or attending any proceedings, although not named on record”.  Mr Lau submitted that Madam Kay qualifies within the meaning of “party” under section 2.

41.  Mr Chau referred me to Official Solicitor v HSBC International Trustee Ltd [2011] 4 HKLRD 644.  It was a decision under the old section 52A of HCO [26].  At para 17, the learned Deputy Judge (as she then was) referred to The Owners of Cargo Lately Laden on Board the “CR Pointe Noire” v The Owners of the Ship “CR Pointe Noire” [2006] 1 HKC 614 in which Deputy Judge Peter Cheung (as he then was) said:

“Section 2 refers to someone served with notice of and attending proceedings other than the party on record. The party on record will of course serve and be served with the documents in the proceedings or attending the proceedings in its capacity as a party on record. Section 2 covers those persons who are not parties on record but nonetheless are served with notice of and attending proceedings. In my view, such persons must be served with notice of or attending proceedings in their own capacities.”

The learned Deputy Judge eventually held [27] that a next friend is not a party to an action.  Although section 52A has subsequently been amended, the definition of “party” in section 2 remains unchanged.

42.  I therefore reject the submission of Mr Lau.  I have to proceed on the basis that Madam Kay is a “non‑party”.

43.  Under the current section 52A(2), this court may make an order awarding costs against a person who is not a party to the relevant proceedings if it is satisfied that “it is in the interest of justice to do so”.  Order 62, rule 6A sets out the appropriate procedure to be adopted if the court is considering to exercise its power under section 52A to make a costs order against a non‑party.  Rule 6A(1)(a) states that “that person” must be joined as a party to the proceedings for the purpose of costs only.  Then rule 6A(1)(b) stipulates that “that person” must be given a reasonable opportunity to attend a hearing at which the court shall consider the matter further.

44.  It seems that the correct procedure had not been adopted by Master M Wong.  Madam Kay was not joined as a party for the purpose of costs only.  The matter was not adjourned to a later hearing for the court to consider the matter further.  What happened below was that both counsel for the Committee and counsel for Madam Kay were given fully opportunity to make full submissions on whether a personal costs order should be made against Madam Kay.  Mr Chau however fairly accepted at the hearing of the appeal that these deficiencies merely amounted to irregularities which this court can cure.  Mr Chau was prepared to rely just on his substantive arguments.

45.  Mr Chau submitted that:

(1) It will generally not be appropriate to impose personal costs liability against a next friend unless he has committed “misconduct”.  According to Nalder, ibid, a next friend acting in bona fide should be protected.

(2) In this case, the reasoning of Master M Wong was that “if Madam Kay had not taken objection, the matter would have stopped at the first hearing (ie 7 September 2015)”.  This was a wrong reason.  Madam Kay was justified in not given her consent to the removal and substitution because prior to her removal by this court, she had the obligation and was entitled (as the plaintiff’s next friend) to voice out her concerns for the court’s consideration.  The fact that her concerns were later rejected by the court would not render it just to order costs against her personally.

46.  Both Counsel referred me to Hong Kong Civil Procedure 2016 at para 62/6A/6.  Such costs orders are exceptional. Conduct such as bad faith and ulterior motive is ground for making such orders.

47.  I have concluded, on the basis of the evidence produced that Madam Kay is not a suitable person on whom this court can repose trust and confidence.  The 2^nd affirmation of Mr Ng was filed on 15 December 2015. Thereafter, Madam Kay did not seek to file further affirmation to challenge the various matters contained in Mr Ng’s 2^nd affirmation which reflected badly on her character and integrity.  She nonetheless continued to oppose the application for removal and substitution.  Madam Kay was then still in the position of the plaintiff’s next friend and should place the interest of the plaintiff at the forefront.  If she had placed the interest of Dato Ng at the forefront, I cannot see how she could conclude, bona fide, that it is in the interest of Dato Ng to continue to spend legal costs in further resisting the summons.  I am of the view that her action was motivated by her self‑interest, self‑esteem or emotion which is similarly borne out in the array of unmeritorious litigations Madam Kay waged against the family members of Dato Ng.  In my view, it is not just and fair that Dato Ng should end up bearing the unnecessarily incurred legal costs due to Madam Kay’s obstinate conduct.  I do not accept Mr Chau’s submission that Madam Kay was acting bona fide in the interest of protecting and safeguarding Dato Ng.  In my judgment, it is in the interest of justice that Madam Kay should be ordered to personally bear the costs of the summons after 15 December 2015 including the hearing before Master M Wong on 1 February 2016.

48.  Accordingly, I will only vary paragraphs (6) and (7) of the Order of Master M Wong to the extent of substituting the dates of “7 September 2015” by “15 December 2015”.  As for paragraphs (8) and (9) of the Order of Master M Wong, they have been overtaken by the event of this appeal.  I will therefore make the necessary orders for summary assessment of costs after parties’ indication of their agreed time schedule for submission of Statement of Costs and Statement of Objection.

49.  As for the costs of this appeal, and for avoidance of doubt, I order that Madam Kay be joined as a party for the purpose of costs only.  I also direct Madam Kay to show cause within 14 days from the date of delivery of this Judgment as to why she should not be ordered to personally pay for the Committee’s costs of this appeal.  Parties are invited to agree to a time table for making written submissions on this costs issue.

50.  Finally, the 1^st and 2^nd defendants put in a Skeleton submission stating that this appeal is in principle a contest between Mr Ng and Madam Kay and hence the defendants would merely be present by Counsel on watching brief.  The attendance of Mr Ko was thus a matter of the defendants’ own choice and not a matter of necessity.  I therefore make an order nisi that there shall be no order as to costs between Madam Kay and the defendants in relation to this appeal.  This order nisi will become absolute if no application for variation is made within 14 days from the date of delivery of this Judgment.