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

HCMP 2596/2017

[2018] HKCFI 1069

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

The application

1.  There are two applications before me:

(a) the summons dated 28 November 2017 taken out by the plaintiff for the continuation of the Order made by Mimmie Chan J on 22 November 2017 (“the Continuation Summons”); and

(b) the summons dated 6 April 2018 by the defendants for an Order that the action do continue as if commenced by Writ, and consequential directions (“the Directions Summons”).

The background

2.  The plaintiff has five brothers and sisters.  Their mother is Madam Tang.  She is now about 93 years of age.  Her health has not been good.  The plaintiff claims that she has not been adequately taken care of, and that some of his brothers and sisters have been trying to prevent him from having access to his mother.  He took out the Originating Summons herein on 22 November 2017.  He seeks an injunction against three of his brothers and sisters.  He seeks to restrain them from (i) preventing Madam Tang from having contact with friends or family members, including in particular the plaintiff; (ii) seeking to persuade or coerce Madam Tang into agreeing to give a “do not resuscitate” direction to her medical doctors; (iii) interfering in the provision of care and support to Madam Tang; (iv) refusing Madam Tang access to health and social care professionals from Hong Kong Sanatorium & Hospital and/or medical professional of her choice; and (v) making any decision purportedly for Madam Tang and/or conducting themselves in any way which is detrimental to the interest, welfare and/or well-being of Madam Tang.

3.  Also on 22 November 2017, the plaintiff attended before Mimmie Chan J and obtained on an ex parte basis an interlocutory injunction against the defendants (“the ex parte Injunction Order”).  The three defendants were thereby restrained, until further order of the Court, from (i) preventing Madam Tang from having contact with the plaintiff or preventing the plaintiff from gaining access to her; (ii) interfering in the plaintiff’s provision of care and support to Madam Tang, and (iii) refusing Madam Tang access to health professionals of her choice.

4.  On 28 November 2017, the plaintiff took out the Continuation Summons. The return date was 1 December 2017.  On 30 November 2017, the 1^st defendant filed his affidavit in opposition.

5.  On 1 December 2017, the parties attended before L Chan J.  The plaintiff appeared in person.  The defendants were represented by Mr Remedios.  At the conclusion of the hearing, L Chan J struck out paragraph (iii) of the ex parte Injunction Order. The reason was that Madam Tang had not been able to communicate with others.  Paragraph (iii)was therefore useless.  The plaintiff agreed to that.  The ex parte Injunction Order was otherwise continued with some amendments, in the following terms (“the inter partes Injunction Order”), that:

“ The ex-parte interim injunction order granted by The Honourable Madam Justice Mimmie Chan on 22^nd day of November 2017 be amended as below and shall continue until determination of the Plaintiff’s Summons filed on the 28^th day of November 2017 or further order:

1.1  The 1^st, 2^nd and 3^rd Defendants be restrained from

1.1.1 Until further order of the Court, preventing Madam Tang Lai Wah (“Madam Tang”) from having contact with the Plaintiff or preventing the Plaintiff from gaining access to Madam Tang for so long as Madam Tang is hosptialised;

1.1.2  Until further order of the Court, interfering in the Plaintiff’s provision of medical care and medical support to Madam Tang.”

Directions were also given to the parties for filing of further evidence.

6.  Two matters about the inter partes Injunction Order should be noted:

(a) the scope of paragraph 1.1.1 has been limited to “so long as Madam Tang is hospitalized”; and

(b) on the question of payment of medical expenses, whilst it is not explicit on the face of the Order, the transcript of the hearing before L Chan J makes it clear that paragraph 1.1.2 was made on the basis that if the plaintiff was to engage doctors, he would have to pay for the doctor’s fees.

The hearing of the Continuation Summons

7.  The parties have, in compliance with the directions given by L Chan J, filed further evidence in support / opposition of the Continuation Summons. Despite those additional affidavits, Mr Remedios, who continued to appear for the defendants, helpfully confirmed in his written submissions that the defendants “do not objection to [the inter partes Injunction Order] being continued subject to one matter, namely that “any medical care and medical support provided by the Plaintiff to Madam Tang be paid for by the Plaintiff.”  Mr Remedios seeks an order that paragraph 1.1.2 of the inter partes Injunction Order be amended accordingly through application of the slip rule.

8.  The plaintiff continued to appear in person.  In his written submissions, he indicated that Madam Tang had been responding positively towards the latest care and treatment which she received.  He specifically said that “The injunction granted by the Hong Kong High Court had the desired effects on the defendants, and as a consequence my ninety-three-year-old Mother and I are very grateful that her near-death illness has subsided and is on her recovery phase.”

9.  This morning, the plaintiff invited me to amend the inter partes Injunction Order by ordering that “the plaintiff is to make all the decisions on the medical care and health care of the plaintiff’s mother”.  If I were to make that amendment, I would give the plaintiff the power to override not just all his siblings, but potentially all medical professionals.  This power is far wider that the injunction which the plaintiff is seeking in the Originating Summons.  I note that the plaintiff is not medically trained.  I refuse to make the amendment.

10.  In the circumstances, I am satisfied that the inter partes Injunction Order in its current terms, subject to the addition of the words “any medical care and medical support provided by the Plaintiff to Madam Tang be paid for by the Plaintiff” at the end of paragraph 1.1.2, should be continued.

The Directions Summons

11.  I have considered the various affidavits filed by and on behalf of the parties.  I have also considered the submissions of Mr Remedios and the plaintiff.  There are indeed factual matters which are in dispute, and potentially hotly.  They include whether the defendants had caused Madam Tang to have been discharged from hospital prematurely, whether the plaintiff had made threats to Madam Tang and the 1^st defendant, whether the plaintiff had been denied access to Madam Tang whilst she was at her residence, whether the plaintiff had been refused access to Madam Tang’s medical records, and whether the defendants had otherwise provided adequate care to Madam Tang.  These are all issues which cannot be appropriately adjudicated upon summarily on affidavit evidence only.  I further note that in his written submissions, the plaintiff was still trying to offer evidence which has not been covered by his previous affidavits.  All these will have to be tidied up so as to make the action trial ready.

12.  I have considered the appropriate procedural options ahead.  One alternative to ordering that the action be proceeded with as if commenced by writ is to order the attendance of witnesses for cross-examination.  The action will become ready for trial earlier.  Time is important, given the age of Madam Tang.  On the other hand, given the imposition and continuation of the inter partes Injunction Order, and that the status quo appears to have been satisfactorily maintained, time pressure is slightly off.  Given the extent of the dispute on facts, and the fact that the action was only commenced in late November last year, I am of the view on balance that I should accede to the defendants’ application and order that the action should be continued as if commenced by writ.  I also made the directions sought in the Directions Summons.

13.  I will hear the parties on costs.