RE CA

HCMH 51/2017

[2022] HKCFI 1294

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MENTAL HEALTH CASE NO 51 OF 2017

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DECISION

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1.  In respect of the ex parte summons filed by the Committee of the estate of CA filed on 7 January 2022, I make the following orders:

(1)  Leave be given for the balance of the agreed damages under the order of the court in HCPI xxxxxxxxx (“the PI action”) dated 22 November 2021, subject to deduction of the sum of £1.1 million to be paid into court as security for the Director of Legal Aid’s first charge, to be paid direct by the defendant’s indemnifier into CA’s deputyship account held by Messrs Hugh James, Solicitors with NatWest Bank account number xxxxxxxxx in the name of Hugh James Trust Corporation Limited as Deputy for xxxxxxxxx;

(2)  The Committee shall within 21 days of completion of the transfer to the UK deputyship account file with the court an affidavit of their solicitor confirming the said completion of the transfer, with exhibited evidence of the same;

(3)  The issue regarding the discharge of the Committee of CA’s Estate be deferred until all outstanding matters in the PI action, including costs issues, have been concluded;

(4)  Pending the determination of the issue regarding the discharge of the Committee, the requirement of the Committee to file an annual report of the estate in the usual format is waived, and instead the Committee shall lodge with this Court:

(a)  a copy of the annual deputyship report submitted to the Office of the Public Guardian (“OPG”), and

(b)  a short report on the funds remaining in Hong Kong.

(5)  Both of the reports in 4(a) and (b) above shall be lodged by the Committee within 21 days of Messrs Hugh James receiving a response from the OPG Professional Deputy Team to the annual deputyship report;

(6)  Leave be given for the Hong Kong dollar balance in the Committee Account no xxxxxxxxx be transferred into CA’s deputyship account;

(7)  The costs of this application be paid by the defendant in the PI action on the common fund basis as provided for in paragraph 2 of the order dated 22 November 2021.

2.  I also direct that the adjourned hearing fixed for 11 May 2022 be vacated.

3.  I am satisfied on the basis of the affidavit evidence that CA had moved from Hong Kong to the UK with her parents in March 2021 and the intention is that she will live there permanently, with no plan to return to Hong Kong.

4.  Prior to her move, an order had been granted by the Court of Protection in the UK appointing CA’s father and Hugh James Trust Corporation Limited (latter, “the professional deputy”) to be the joint and several deputies of CA. They are appointed to make decisions on her behalf in relation to her property and affairs.

5.  I therefore consider that it is sensible and reasonable for the damages received by CA in the PI action to be transferred to the account of the professional deputy, provided that there are sufficient safeguards in the UK mental health regime which serve to protect the interests of CA, in particular in the event of any breach of duty of the deputies.

6.  The damages are very substantial. They are to be used for the benefit of CA for many years to come. Hence before I grant leave for the damages to be transferred to the UK, over which this court has no jurisdiction, I need to be satisfied that the interests of CA will be protected.

7.  Where that is the case and given that no fund will eventually be retained in Hong Kong, as a matter of principle, I consider that it is an appropriate case for the Committee to be discharged as soon as the PI action is concluded and all damages are transferred to the UK deputy account.

8.  As to the legal basis, I am not entirely sure whether leave should be granted under section 23 of the Mental Health Ordinance, as contended by the Committee. While the literal wording of the section appears to apply to the present scenario, I have some doubt as to whether it should apply where a committee is indeed in place.

9.  On the other hand, the mental health court has a supervisory role over a committee. Where the committee wishes to transfer property of the MIP out of jurisdiction, prima facie the court would consider the proposal as part of its overall supervisory jurisdiction. In this regard, I have in mind section 10A(1) of the Ordinance.

10.  I do not consider that it is necessary for me to resolve this point. Under at least one of the two sections, this court clearly has the power to grant leave. The question is whether I should exercise my discretion to do so.

11.  Having reviewed the materials before me, including in particular the affidavit of Mr Andrew Harding of the professional deputy dated 17 March 2022 and his subsequent letter dated 14 April 2022, I am satisfied that the UK regime, as discussed and explained by Mr Harding, contains various safeguards designed to ensure that the deputies who are appointed to make decisions for MIPs in relation to their property are suitable for the purpose and that they are continuously subject to close scrutiny throughout their appointment.

12.  In the present case, the appointment of the father and the professional deputy were vetted by the Court of Protection. The performance of their duty is subject to the ongoing oversight of the OPG.

13.  The deputies have put up an initial security bond of £75,000 to cover their liability. Once damages are paid in, they are under an obligation to apply to the Court of Protection to review the amount of the security bond and the estimate is that it would be £500,000 or more. This would provide immediate payment of funds if there is any wrongdoing leading to loss. In addition, the professional deputy carries professional indemnity insurance cover for £100,000,000, which will be a recourse for CA if she suffers any loss by reason of wrongdoing of the professional deputy, including, eg, the worst case scenario of someone within the deputy firm absconding with her money.

14.  In addition, under the UK regime, a deputy is required to report to the OPG on an annual basis explaining the decisions they have made. The OPG would consider the report and raise query, where appropriate. If the OPG has concerns, or if there is a significant change of circumstances, the OPG can arrange for an independent visitor to go and see the MIP and review the situation. The OPG may apply to the Court of Protection to remove a deputy who fails to carry out his duty.

15.  To conclude, on the materials before me, I am satisfied that the UK mental health regime provides for an elaborate mechanism to achieve the following: (1) deputies who are appointed are suitable for the purpose, and (2) proper safeguards are built in to monitor that deputies make decisions in the best interests of the MIPs.

16.  Mr Harding has also provided materials to demonstrate that the professional deputy has extensive experience in handling cases involving large sums of damages. In one case, the lump sum award is of a smaller but comparable size to the present case.

17.  For these reasons, I make the orders set out in para 1 above.