CHOW HUI SHUI YEE v. CHOW SUNG MING

IN THE DISTRICT COURT OF HONG KONG

DIVORCE JURISDICTION

NO. 1178 of 1984

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1. This matter comes before me in the following way.

2. On the 12th April, 1984, Chow Hui Shui Yee presented a petition for dissolution of her marriage with Chow Sung Ming alleging irretrievable breakdown of the marriage evidenced by desertion and behaviour. It was apparent from paragraph 3 of the Petition that there must have been doubts as to the mental state of the Respondent as he was then (and still is) an in-patient of Castle Peak Hospital.

3. On the 20th September, 1984, Mr. Cheung of the Legal Aid Department made an affirmation exhibiting a Medical Report from a Dr. T.K. Cheung of that hospital stating that in his opinion the Respondent was incapable of giving instructions by reason of his mental state. I am satisfied from further evidence that this position has not changed.

4. I have also before me a Memorandum from the Legal Department to the Legal Aid Department dated the 25th July, 1984. I quote it in extenso :

"In view of the fact that: -

(a)	The Respondent does not intend to defend the divorce petition;
(b)	There are no children of the family;
(c)	The Petitioner is not claiming any ancillary relief;
(d)	The Petitioner is not claiming costs for this petition;
(e)	According to the mother there is no property to the marriage; and
(f)	The Respondent is unlikely to be discharged in the near future.

 

I consider there is no interest of the Respondent which might be prejudiced if a guardian ad litem is not appointed to act on his behalf. The Crown Solicitor thus does not consent to act as guardian ad litem."

5. On the 1st November, 1984, there was an application before me for directions as to whether a Guardian ad Litem should be appointed. It is clear from Matrimonial Causes Rule 105(5) that the Court has a discretion to dispense with a Guardian ad Litem. Some guidance as to the exercise of that discretion may be obtained from Morrissey v. Morrissey (1965) I WLR 1330 at 1335F - 1336A where the material words of M.C.R. 1957 r. 6(6) were the same :

..... and the Court may if it "considers it necessary in order to protect the interests of the person served order that some proper person may be appointed his guardian ad litem."

6. An example given by Payne, J. in that case where it would not be necessary to appoint a guardian would be where the infants had received legal advice and no useful purpose would be served by entering an appearance. In Morrissey v. Morrissey, so far as was known, no legal advice had been taken and on the facts of that particular case the Judge thought it right that there should be an appointment.

7. In the instant case the Respondent had received no legal advice nor had anyone on his behalf. The matter in issue was his own status, a matter traditionally of considerable importance in the view of the Courts and possibly a right to claim maintenance from his wife; he was incapable of giving instructions and in any event the case against him appeared to be extremely weak. I had no doubt that a Guardian should be appointed on his behalf and this view was entirely consonant with what would have been the practice, as I understood it, of the English courts. There seemed no reason to depart from that practice. Accordingly I ordered that the application be adjourned sine die for the Director of Legal Aid to locate any family member willing to be appointed. This proved impossible and Mr. Clough did not in any event feel it was appropriate for the Petitioner's solicitors to make such enquiry. I therefore further ordered on the 26th November, 1984, that the application for appointment of a Guardian ad litem be adjourned to the 11th December, 1984, and that the Crown Solicitor or his representative should attend. That hearing was adjourned part-heard until the 14th December, 1985. On those dates I heard arguments to which I shall refer below. On the 31st January, 1985, I sought confirmation that the Crown's case was that the office of Crown Solicitor here differs only in name from that of the Official Solicitor in England and that the duties of both offices are identical.

8. On the 9th February 1985 (although the letter did not reach me until the 25th February) the Crown replied "The Crown Solicitor's current practice follows in all material ways the practice of the Official Solicitor in England."

9. The situation before me on the 14th December 1984 can be summarized as follows:

10. I had reached the view that a Guardian ad litem was required in the interests of justice itself and also because justice should be seen to be done. Unfortunately it had proved impracticable to find a family member willing to act. The Petitioner in the event was barred from proceeding until such an appointment was made and thereby prevented from obtaining such remedy to which she might be entitled. The only ;person seemingly available was the Crown Solicitor who did not consent to be appointed.

11. Mr. Strawbridge on behalf of the Crown Solicitor referred me to various authorities, rules and to Latey on Divorce and the current edition of Rayden. In particular M.C.R. 105(4) "Where a person entitled to defend any matrimonial proceedings is a mentally disordered person, then-

12. Does this rule and the cases cited establish the principle that the Crown Solicitor can only be appointed by the Court with his consent in all circumstances ?

13. I was concerned with an application under r. 105(5) to which I have already referred. In full it is as follows :

                "Where a petition, answer, originating application or originating summons has been served on a person whom there is reasonable ground for believing to be a person under a disability and no notice of intention to defend has been given, or answer or affidavit in answer filed, on his behalf, the party at whose instance the document was served shall, before taking any further step in the proceedings, apply to a court for directions as to whether a guardian ad litem should be appointed to act for that person in the cause, and on any such application the court may, if it considers it necessary in order to protect the interests of the person served, order that some proper person be appointed his guardian ad litem."

14. I reiterate "in order to protect the interests of the person Served, order that some proper person be appointed his guardian ad litem. There is no mention of consent in this sub-section.

15. There are therefore two questions for me to decide:

16. In Re Harbin v. Masterman (1896) 1 Ch 351 at p 368 A.L. Smith L.J. stated "We have an officer of this Court who is called the Official Solicitor. In my judgment, that officer is appointed Official Solicitor to the Court in order that a Judge when he sees before him certain matters which he wants investigated, and as regards the absolute accuracy of which counsel is not instructed, and has no knowledge whatever, may communicate with that official in order that the Judge may be informed as to where the real truth of the case lies" and per Rigby L.J. at p 371 "be appointed to act where, if this were not done there would be either a denial or miscarriage of justice." The position and history of the Official Solicitor is helpfully set out in notes 5303 and 5304 of the Annual Practice. The last paragraph of 5304 is strongly indicative -"In all cases, save where he has been requested to act by the Court, the Official Solicitor retains his discretion whether to act or not, even if any appropriate undertaking is forthcoming, and he may, in exceptional cases, require more stringent terms to be fulfilled as a condition of consent to act. But in all cases, his fundamental object in consenting to act remains the same, to prevent possible injustice to a party who might otherwise be deprived of a legal remedy."

17. In the event I am of the opinion that the Official Solicitor (in this case the Crown Solicitor) is an officer of the Court which has a residual jurisdiction to request him to intervene or act on behalf of a party to prevent either a denial or miscarriage of Justice and that the Official Solicitor is in duty bound to obey the Court's request.

18. Should the Court exercise this power in this case ? I have already indicated that in my judgment on the facts I have found there is a risk on the one hand of a denial of justice to the Petitioner and on the other of a miscarriage of justice against the Respondent who is incapable of protecting his own interests.

19. Finally I should add that this power which I have held to exist must, of course, be exercised sparingly and only to prevent a risk of injustice.

20. I accordingly request the Crown Solicitor to represent the Respondent in this cause and appoint him guardian ad litem of the Respondent pursuant to M.C.R. 105(5).