JT v. THE DIRECTOR OF SOCIAL WALFARE

HCMH 87/2023

[2025] HKCFI 957

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MENTAL HEALTH CASE NO 87 OF 2023

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BETWEEN

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REASONS FOR JUDGMENT

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INTRODUCTION

1.  On 25 July 2023, the Guardianship Board made an order receiving TCF into guardianship and appointed the Director of Social Welfare as his guardian pursuant to section 59O of the Mental Health Ordinance, Cap 136.

2.  On 10 January 2024, I granted leave to JT, TCF’s nephew, to appeal against the guardianship order on two grounds.

3.  The appeal was brought by way of an amended notice of originating motion filed with the court on 26 January 2024, pursuant to section 59W of the Ordinance. JT is the applicant and the Director is the respondent.

4.  By letter dated 29 April 2024, the respondent, through the Department of Justice, informed the court that he would take a neutral stance in the appeal. No affidavit evidence in opposition was filed.

5.  The substantive hearing of the appeal took place on 19 July 2024.

6.  At the conclusion of the hearing, I was satisfied that both grounds of appeal were made out and the guardianship order could not stand. In order to determine whether the case should be remitted to the Board or the guardianship order should simply be set aside, I directed that the applicant file a further affirmation setting out his care plan for TCF, his resources, capability and suitability to carry out the care plan, TCF’s mental capacity, and his stance as to whether it would be in the best interests of TCF for a guardian to be appointed. I also directed that after receiving the affirmation, the respondent should inform the court whether he would take out a fresh application for guardianship order.

7.  On 12 August 2024, the applicant filed his 4^th affirmation in compliance with my direction. Subsequently, the respondent confirmed that the care plan prepared by the applicant was comprehensive and could meet the needs of TCF. In view of that and the caring ability of the applicant, the respondent considered that a fresh application for a guardianship order would not be necessary.

8.  In light of that, I was satisfied that the guardianship order should be set aside and there was no need to consider afresh the issue of receiving TCF into guardianship. On 9 September 2024, I made the following orders:

(1) the appeal be allowed;

(2) the guardianship order be quashed; and

(3) there be no order as to costs of the appeal.

9.  These are my reasons for making the above orders.

10.  This appeal was primarily about whether there was procedural impropriety in the conduct of the hearing before the Board in that no proper interpreter was arranged for TCF when it was now alleged that he only had a limited grasp of Cantonese, which was the language used in most part of the hearing.

FACTUAL BACKGROUND

11.  The evidence before the court, which is not challenged, reveals the following.

Personal background

12.  TCF was born in Indonesia. He is single and has no children. He is now in his 80s.

13.  He went to Beijing alone from Indonesia when he was young. After completing his studies in Beijing, he came to Hong Kong when he was about 20 years old. He did not return to Indonesia. In Hong Kong, TCF lived alone, but he has maintained contact with the applicant.

14.  TCF never received formal education in Cantonese. He is a Mandarin speaker with a limited understanding of Cantonese.

Guardianship applications

15.  In March 2023, he was admitted to United Christian Hospital due to a slip and fall accident. The hospital was unable to contact his family members or relatives as they all lived overseas at the time. The doctor referred him to a medical social worker for further investigation. He was then referred to the Consultation Liaison Psychiatry unit for assessment.

16.  On 31 March 2023, the medical social worker in charge lodged an application for guardianship order in respect of TCF. The application was supported by the medical certificates of two doctors from the hospital. Both doctors were satisfied that TCF was a mentally incapacitated person suffering from mixed-type dementia and hoarding disorder, which warranted receiving him into guardianship.

17.  I should point out at this stage that in neither certificate was there any mention of the language used in the assessments of TCF. I shall refer to the two medical certificates as “the supporting medical certificates” below.

18.  TCF was discharged from the hospital on 12 April 2023. He was admitted to a care home on an emergency placement basis.

19.  On 17 April 2023, an emergency guardianship application was made.

20.  In respect of the guardianship applications, a social enquiry report dated 4 May 2023 was compiled. It was stated that TCF “could speak and understand Cantonese supplemented with Mandarin”.

Dr Lam Chun’s opinion

21.  After the applicant learned about the application, on 26 June 2023, he arranged for TCF to be seen by Dr Lam Chun, a psychiatrist in private practice, in the presence of a medical social worker and a lawyer.

22.  Dr Lam produced a report dated 7 July 2023.

23.  The following observations and opinions of Dr Lam are material.

24.  First, the consultation was conducted in mixed Cantonese and Mandarin. Dr Lam observed that TCF had some limitation in his understanding of Cantonese but he was fluent in Mandarin.

25.  Secondly, Dr Lam referred to the assessment by the Consultation Liaison Psychiatry unit. Given TCF’s limitation in his Cantonese capability, Dr Lam expressed doubt over the conclusion that an application for guardianship order should be made. He said:

“Upon Consultation Liaison colleague’s assessment, as the patient could not understand his Cantonese advanced vocabulary, and it is suspected that very likely the patient’s Mandarin and Indonesian dialects were also not understood, with no translator requested to be present to facilitate communication by the Orthopaedic case doctor for the Consultation Liaison colleague, the patient was prematurely deemed uncommunicable and guardianship order application proceeded hastily.” (underline added)

26.  Thirdly, TCF scored 17/30 points for the Montreal Cognitive Assessment. Taking into account his advanced age and his level of education, Dr Lam opined that TCF suffered from mild neurocognitive disorder but that did not interfere with his independence in everyday activities, and he still had normal mental capacity and function. I reproduce his opinion below:

“This score reflects that the patient has ‘mild neurocognitive disorder’. The definition of mild neurocognitive disorder is that there is some decreased mental function, but able to stay independent and do daily tasks. It is a disorder that may progress to dementia – importantly, it may not. At this stage, he still has normal mental capacity and function correlated to his age and level of education, and does not suffer from any major neurocognitive disorders (dementia) or mental incapacity.”

“This patient is perfectly capable of taking care of himself independently. Reinforced with a steel-hard social support from his nephew, his nephew’s wife and their domestic helper, it is my expert opinion and professional recommendation that this patient be discharged from his current Old Age Home back to his own home and his own community to live with his nephew and their family.”

Dr Kong Ka Lun’s assessment

27.  On 14 July 2023, at the request of the Guardianship Board, Dr Kong Ka Lun, a psychiatrist of United Christian Hospital, conducted another assessment of the mental condition of TCF. The assessment lasted for two hours and was conducted in the presence of a caseworker and a consultant psychiatrist.

28.  Dr Kong signed a certificate dated the same date stating his opinion that TCF was a mentally incapacitated person which warranted his reception into guardianship.

29.  Separately, the doctor produced a detailed report dated 21 July 2023.

30.  According to that report, the assessment was conducted “in mixed Cantonese and Mandarin Chinese”. In this appeal, it is not in dispute that no interpreter was arranged for that assessment.

31.  TCF scored 15/30 points in the Montreal Cognitive Assessment, and he scored 8/30 points in the Hong Kong Brief Cognitive test, which indicated that he had major neurocognitive disorder.

32.  Dr Kong concluded as follows:

“From my assessment, [TCF] was impressed to have hoarding disorder and mixed type dementia up to mild to moderate severity, which was a kind of major neurocognitive disorder. His general condition improved when he stayed in a supervised enviornment with better medication adherence and adequate nutrition. A supervised accomodation would be required for him. A trusted and reliable carer would be needed to assit him to handle his finance and protect him from financial exploitation. [TCF] did not show full understanding but appeared to agree with my assessment result. He was prescribed with memantine (cognitive enhancer) 5mg every day.”

33.  A supplementary social enquiry report dated 21 July 2023 was compiled. Similar to the last report, it was stated that TCF “could speak and understand Cantonese supplemented with Mandarin”. The conflicting medical opinions on TCF’s mental capacity were noted, namely the supporting medical certificates and Dr Kong’s opinion on the one hand and Dr Lam’s opinion on the other.

34.  Despite the different views expressed by the doctors, it was concluded that the further investigation showed that TCF’s ability to manage his self-care and daily activities was doubtful and that from a welfare point of view, he needed a legal guardian to manage his affairs.

35.  What is material in this appeal is that the evidence shows that the assessments by the hospital doctors who compiled the supporting medical certificates, the interviews by the social workers and the assessment by Dr Kong were all conducted without any qualified Mandarin-Cantonese interpreter.

The hearing before the Guardianship Board

36.  The hearing before the Guardianship Board took place on 25 July 2023. Among others, TCF, the applicant, Dr Lam and Dr Kong were present and gave evidence. The Board made the guardianship order on the same day. Witten reasons for the order were later delivered.

37.  At the beginning of the hearing, the Board added the applicant as a party to the guardianship proceedings. Relying on Dr Lam’s opinion, the applicant took the stance that TCF was not mentally incapacitated.

38.  What is material in this appeal is the language used during the hearing. The applicant’s affirmation evidence, which is unchallenged, is that:

(1) The hearing was conducted in Cantonese.

(2) No qualified Mandarin-Cantonese interpreter was arranged to be present.

(3) Neither TCF nor the applicant was asked whether they understood Cantonese and whether they agreed to the use of Cantonese at the hearing.

(4) At the hearing, Dr Kong spoke in (inaccurate) Mandarin to explain his report.

(5) The applicant in fact did not fully understand the hearing when conducted in Cantonese.

(6) He believed that TCF did not understand either.

(7) That was why neither the applicant nor TCF made too much responses during the hearing.

39.  I highlight below the key observations and findings made by the Board as revealed in the written reasons.

40.  First, it was recorded that Dr Kong spoke “in fluent Putonghua for the benefit of [TCF] and [the applicant]”.

41.  Second, the Board observed that there was a lack of focus on the discussion on the part of TCF at the hearing and a lack of response from him. When the prospect of receiving him into guardianship was raised with him, the Board observed that TCF was “incapable of objecting or agreeing and simply smiled happily and said thank you” and that he was “plainly incapable of responding not only to the Board but to the others present”.

42.  I reproduce the relevant paragraphs in the written reasons:

“8. [TCF], the Subject, attended the hearing in a wheelchair and was greeted by Board members. He has no recollection of ever receiving the documents sent by the Board for this hearing. When it was explained to him that the hearing was conducted to see whether he was mentally incapacitated and needed protection in the form of guardianship, he smiled and said thank you.

…

10. When the Board further discussed the Subject’s vulnerability in that, if he was considered not mentally incapacitated, the Subject would have freedom to dispose of his property, including giving away property, for example, to those who seemed nice to him and whom he had just met. Guardianship would pose some restriction on this and prevent him from being exploited. On this point, the Subject did not focus on the discussion nor gave any response. Neither did [the applicant] or his legal representative respond specifically on this issue.

…

38 . The Subject’s poor awareness and inability to defend himself was clearly demonstrated in the Board’s brief interaction with him at the hearing, as he was totally unaware of the documents that were served on him, he did not understand the nature of guardianship and he showed no objection whatsoever when the Board explained to him that he has been put under guardianship with the public guardian appointed. He did not focus on the outcome that he could not use his money freely. He did not express any view or show any understanding about the role of his nephew as compared with the social workers. Someone who has a reasonable level of mental capacity would be expected somehow to react to this situation, if only to enquire about what would happen to himself, but the Subject was incapable of objecting or agreeing and simply smiled happily and said thank you. In other words, the Subject was plainly incapable of responding not only to the Board but to the others present …” (underline added)

43.  Third, the Board rejected Dr Lam’s conclusion and accepted Dr Kong’s assessment. In its reasoning, the Board took note of Dr Lam’s point about TCF’s language barrier and his view that it might affect TCF’s test scores. At the same time, the Board also took note of Dr Kong’s view on this.

44.  In the end, the Board concluded that while the overall mental capacity of TCF might be a borderline case between mild cognitive impairment and dementia and he might retain some aspects of his memory, given his poor awareness of his situation and his inability to defend himself as demonstrated at the hearing, he was mentally incapacitated and needed the protection of a guardianship order.

“33. The Board took into account the findings in the two medical reports. While the overall mental capacity of the Subject might, based on the medical opinion rest on the borderline of the scores indicating mild cognitive impairment and dementia, it was clear that his decision-making power had been jeopardized by his serious hoarding behaviour, his dealings with the named women who alleged took his property and his responses (or lack thereof) to the Board at the hearing. …

…

38. … In other words, the Subject was plainly incapable of responding not only to the Board but to the others present, even if the Board accepted Dr LAM’s report at face value that he retained some aspect of his memory. Dr LAM’s conclusion, however, could not be accepted. The Board concurred with Dr KONG’s medical assessment and found that the Subject was mentally incapacitated. The Subject needed protection in the form of guardianship.”

45.  It is plain from the above extracts that the lack of response from TCF, as observed by the Board during the hearing, played an important part in its reasoning and its final conclusion that TCF was a mentally incapacitated person.

GROUNDS OF APPEAL

46.  The applicant put forward two grounds of appeal. Under the first ground, he contended that there was procedural impropriety tainting the whole process which ultimately led to the making of the guardianship order. That was a breach of natural justice. For that reason, the guardianship order should not be allowed to stand. Under the second ground, the applicant complained that the Board failed to take into account relevant considerations in arriving at its conclusion.

The first ground

47.  Under the first ground, the applicant contended that there was procedural impropriety in the making of the guardianship order in that no qualified Mandarin-Cantonese interpreter was arranged for TCF during the medical assessments, the interviews and at the hearing before the Board. Mr Antonio Tsui, counsel for the applicant, submitted as follows:

(1) TCF is a Mandarin speaker with a limited understanding of Cantonese.

(2) Because of the absence of a qualified interpreter, he was unable to fully understand the questions asked of him and provide timely and appropriate responses. He was unable to communicate effectively and coherently.

(3) At the hearing, the Board would know that he was a Mandarin speaker. However, it did not enquire with him as to his preferred language for the process. The hearing was then conducted in Cantonese with occasional translation provided by Dr Kong, who is not a qualified interpreter.

(4) TCF’s right to be understood properly by means of proper interpretation was ignored. This amounted to a breach of natural justice.

48.  In this appeal, there is no dispute over the language limitation of TCF as alleged by the applicant. In light of that, this ground of appeal must be upheld.

49.  In the context of civil litigation, it has been said that under the principles of natural justice, it is the right of every litigant to be present, to hear the evidence, to challenge the evidence, to call evidence himself, and to present his case to the court while hearing and, if necessary, challenging his opponent’s case: In the Estate of Fuld, decd (No 2) [1965] 1 WLR 1336 at 1339E-G. If a litigant in person does not understand the language of the proceedings and is denied the assistance of a competent interpreter to enable him to proceed with the case, unless he has knowingly waived his rights, there is a denial of natural justice and the litigant will be entitled to relief: Chan Ting Wai v Both Good Co [1986] HKC 375 at 376I-377B.

50.  These principles should apply with equal force in the context of proceedings before the Guardianship Board. This is so because whether a guardianship order would be made would drastically affect the rights and obligations of the person in question.

51.  In the present case, there is much force in the applicant’s contention, and I accept, that the Board would know at the time of the hearing that TCF was a Mandarin speaker. At the very least, the Board would notice that he was not completely fluent in Cantonese.

(1) This was expressly pointed out in Dr Lam’s report (“the patient has some limitation in understanding of Cantonese, but is fluent in Mandarin”). The doctor also highlighted that TCF would not understand advanced vocabulary in Cantonese. See para 25 above.

(2) In fact, in both the social enquiry report and the supplementary social enquiry report, it was expressly stated that TCF “could speak and understand Cantonese supplemented with Mandarin”. This itself should suggest to the Board that there might be some limitation in TCF’s command of Cantonese.

(3) At the hearing itself, Dr Kong used Mandarin to explain his report. There is no evidence before me showing why he chose to do so, instead of using Cantonese. But it is only natural to assume that he did so because it must have been thought that doing so would be helpful to TCF’s understanding of the proceedings. If that is correct, this again would suggest to the Board that TCF’s understanding of Cantonese might be limited.

52.  In this appeal, the applicant said that Dr Kong’s Mandarin was inaccurate. In the written reasons, however, the Board recorded that Dr Kong spoke fluent Mandarin. It is unnecessary to resolve this conflict. The important point here is that Dr Kong attended the hearing as a medical expert offering his professional opinion on the mental capacity of TCF, but not as a Mandarin-Cantonese interpreter.

53.  The objective fact remains to be that no qualified interpreter was present at the hearing. As a result of that, I accept the applicant’s contention that TCF was not able to understand what was going on. The failure to enquire with him whether he would need an interpreter and the failure to provide one, in my view, amounts to procedural unfairness and a breach of the principles of natural justice.

54.  In the end, the Board arrived at the conclusion that TCF was incapable of objecting to, agreeing with or responding to what was said to him. As remarked above, it was a key consideration which had influenced the Board in coming to the final conclusion that TCF was a mentally incapacitated person. This is plain from a reading of the written reasons. The Board pointed out twice that when TCF was spoken to and asked questions, he simply smiled and said thank you (see para 42 above). That reaction had plainly made an unfavourable impression on the Board.

55.  It is of course not known how TCF would have responded if a qualified interpreter had in fact been present at the hearing. But that is not the point here. The point is that there was a failure to arrange an interpreter for him when he had only a limited understanding of Cantonese. That would be sufficient to enable the court to conclude that the findings of the Board on the perceived responses of TCF at the hearing and its ultimate conclusion on his mental capacity were unsafe and could not be upheld.

56.  The first ground of appeal was therefore made out.

The second ground

57.  Under the second ground, the applicant contended that the Board failed to take into account relevant considerations when making the guardianship order. These considerations were:

(1) TCF is a Mandarin speaker with a limited understanding of Cantonese. This language limitation could significantly impact on the accuracy of the medical assessments undergone by TCF, all of which were conducted mainly in Cantonese.

(2) Dr Lam’s observations on the language limitation of TCF.

58.  In my judgment, this ground of appeal was also valid. It is plain from a reading of the written reasons of the Board that it did not fully appreciate the language limitation of TCF.

THE OUTCOME

59.  Under section 59W(3) of the Ordinance, the court should determine the appeal and make such order as it thinks fit, including an order setting aside the decision of the Board and an order remitting the case to be heard and decided again by the Board, either with or without the hearing of further evidence.

60.  At the conclusion of the appeal hearing, I was of the view that the decision of the Board could not stand because of the procedural unfairness. The next question for me was whether the court should simply set aside that decision or remit the case back to the Board.

61.  If the case was sent back, this would mean that TCF would have to undergo fresh assessments on his mental capacity as the supporting medical certificates and Dr Kong’s assessment could not now be relied upon (as no interpretation was arranged during those sessions). What was left before me was Dr Lam’s opinion that TCF was mentally sound. I therefore had some hesitation in sending the case back which would involve TCF having to go through the assessments all over again when the evidence presently before me was that he was not a mentally incapacitated person.

62.  On the other hand, if the court simply set aside the guardianship order, TCF would no longer have a guardian to look after his interests. My concern was whether that would be a proper course to take and be in TCF’s welfare to do so. In this regard, it would be recalled that the hospital doctors, Dr Kong and the social workers all referred to TCF’s hoarding issues and vulnerability. There was therefore still a need to consider invoking the guardianship mechanism for his benefit.

63.  The applicant had since a very early stage (ie after he found out about the guardianship application) made known his position that he was willing to look after TCF for the rest of his life. At the appeal hearing, I therefore directed that he put forward his proposal and evidence showing that he had the ability to carry out the plan.

64.  In his 4^th affirmation filed after the hearing, the applicant put forward a care plan for TCF, and deposed to his ability to execute that plan. He expressed his wish to live with TCF in Indonesia. He said that that was also TCF’s wish. The applicant confirmed that he would be responsible for all the expenses of TCF and he had the means to do so out of the income generated from his business. His plan was to have TCF live with his family together in the family home owned by the applicant.

65.  The applicant also revealed in his affirmation that on 4 August 2024, Dr Lam conducted another assessment of TCF. He concluded that TCF at most suffered from mild neurocognitive disorder, which would not interfere with his daily activities. He also was of the opinion that TCF was a mentally sound person who could take care of himself independently. He could make decisions in relation to accommodation, finance matters, medical treatments, welfare planning and personal care.

66.  By letter dated 2 September 2024, the Department of Justice, acting for the respondent, reported to the court that after the appeal hearing, the caseworker visited TCF and liaised with the applicant. The applicant was cooperative and appeared to be sincere, committed and caring about TCF’s well-being. The respondent considered that his care plan was all-inclusive, concrete and practicable that could meet the caring, medical and daily needs of TCF. For these reasons, the respondent considered that it would not be necessary to make any fresh application for a guardianship order in respect of TCF.

67.  On the strength of the latest evidence of the applicant and the positive report of the respondent, I was satisfied that the appeal should be allowed and the guardianship order be set aside, without the need to either remit the case back to the Board or consider afresh whether to appoint a guardian for TCF. I therefore proceeded to make the order as set out in para 8 above on 9 September 2024.