RE KSK

HCMP 1746/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1746 OF 2005

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D E C I S I O N

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1.  The Official Solicitor was appointed as the Committee of the estate of Madam KSK on 16 September 2005.  On 29 December 2006, a landed property of KSK was disposed of in accordance with the authority granted upon the Committee.  The administration of the rest of the properties in the estate is rather straightforward.  It can be dealt with by a Section 24 order (see Director of Social Welfare v Official Solicitor HCMP 4297 of 2000, 14 Sept 2005).

2.  The Committee applied on 26 March 2008 for the discharge of the Committee and sought an order that the assets of KSK be transferred to the Director of Social Welfare Incorporated Account.

3.  There are guardianship proceedings regarding KSK.  On 28 January 2008, the Guardianship Board renewed the guardianship order appointing the Director of Social Welfare to be the guardian of KSK for a period of two years.

4.  As guardian of KSK, the Director informed the court that he is willing to be appointed as payee under Section 24.  The Director further gave undertakings to this court as follows,

(a)  He shall keep the court informed regarding the renewal of the guardianship order;

(b)  He shall hold the money of KSK in a separate DSW Incorporated Account and use the money in the account only for the maintenance of KSK;

(c)  In the event of the termination of the Director’s guardianship over KSK, the balance of the money in the account shall be deposited into court;

(d)  He shall keep the jewellery and personal items of KSK in proper custody;

(e)  He shall inform the Guardianship Board the terms of these undertakings.  The Board will also be informed that it can refer matters concerning the property and affairs of KSK to this court for further directions if necessary. 

These obligations shall be performed by case officers authorized by the Director.

5.  Final account has been filed by the Committee and approved by the Registrar on 10 October 2008.

6.  In a letter dated 6 November 2008, the Committee up-dated this court as to the balances in the Committee’s bank accounts.

7.  This court has already fixed the remuneration for the Committee on 31 March 2008.

8.  I am satisfied that in the circumstances the Committee should be discharged and that the Director should be appointed as payee under Section 24 of the Mental Health Ordinance.  As regards the transfer of jewellery and personal items of KSK to the Director for safe custody, it can be ordered under Section 10B(1)(a) of the Ordinance.  I shall make an order in terms of the draft submitted by the Committee.

9.  The Official Solicitor and the Director also seek guidance from this court for similar cases in the future whether a Section 24 payee must also be a guardian of the MIP concerned.  My attention is drawn to the fact that the criteria for appointment of guardian are different from those for the appointment under Section 24.

10.  This court cannot pre-empt the exercise of discretion under Section 24 in other cases.  But the following observations can be made,

(a)  Whether it is appropriate to discharge a committee and make a section 24 order (and if so, whom should be appointed) must depend on the facts of each case;

(b)  Section 24 does not confine the choice of payee to the appointment of a person who has been appointed as guardian;

(c)  If a guardian has been appointed, it will usually be in the interest of an MIP to have a mechanism ensuring that the guardian has access to the necessary financial resource for the maintenance of the MIP;

(d)  If the Director of Social Welfare has already been appointed as guardian, and if the court in the exercise of its Part II jurisdiction considers it expedient to make a Section 24 order, the court will obviously bear the consideration under sub-paragraph (c) in mind in deciding who should be appointed as payee;

(e)  If a person other than the Director has been appointed as guardian, in the exercise of its power under Section 24 the court may have to address the question of supervision, in particular whether the monies of an MIP should be kept in court with a order for payment out (monthly periodical payment or otherwise) to facilitate the maintenance of the MIP if such guardian is to be appointed as payee;

(f)  Alternatively, if the Director is willing to play the role of monitoring the use of the monies of an MIP by a guardian in a particular case even though he is not appointed as the guardian, the court may consider appointing the Director as payee and entrust the Director to propose how the fund (or part thereof) shall be released to the guardian from time to time for the maintenance of the MIP;

(g)  Even in a case where no guardianship proceedings is called for, if the Director is willing to play the role of a payee under Section 24, the court can make the appointment if it is satisfied that it is expedient to do so;

(h)  What has been said above is without prejudice to the court’s power to appoint a person other than the Director as payee where no guardianship proceedings is called for. In that scenario, the court will have to address the question of supervision;

(i)  A Section 24 order can cover maintenance of the MIP and his family. It is wider in scope than orders that can be made in guardianship proceedings.   

11.  In short, there can be different options for the court to consider and the discretion under Section 24 must be exercised in accordance with the criteria under Section 10A(2).   

12.  Subject to comments from parties concerned, I propose to release this Decision for circulation.