CPKB v. DIRECTOR OF SOCIAL WELFARE

HCMH 86/2024

[2025] HKCFI 5918

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MENTAL HEALTH CASE NO 86 OF 2024

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D E C I S I O N

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1.  The Appellant is appealing against the decision of the Guardian Board (“Board”) dated 17 July 2024 for appointment of the Director of Social Welfare (“DSW”) as the Public Guardian of her mother who is found by the Board to be a mentally incapacitated person (“MIP”) under Part IVB of the Mental Health Ordinance (Cap. 136) (“MHO”)

Background

2.  The MIP is extremely advanced in years.  She is suffering from dementia and other illness, but can still express her wish in a simple way.  Since 2017 and until March 2024, she was residing with her grandson (“Added Party”) in a Home Ownership Scheme (“HOS”) flat.  The HOS flat was registered under the MIP’s name because it was sold to her under the commonly called “Green Form” application through her giving up the public housing unit rented under her name.  A mortgage was taken out in her name, but the instalments were paid by the Added Party (with dispute as to whether he had provided the entirety of the consideration so far or the Appellant had contributed as well).

3.  On 9 February 2024, the Appellant, the youngest daughter of the MIP, made an application for emergency guardianship to the Board for appointment of herself as the guardian. 

4.  In the letter accompanying the application, the Appellant stated that the MIP had been residing with the Added Party, but with financial and other care arrangement by the Appellant, including the employment of a domestic helper to take care of the MIP.

5.  The MIP has been suffering from multiple medical problems requiring complex treatment and care needs.  Suddenly, the Added Party dismissed the helper and indicated he would take care of the MIP, and placement with a residential home run by a charity (name omitted) had been sought on an urgent basis.

6.  In March 2024, the Appellant took the MIP to her home and she had since been residing there with the Appellant’s and her husband, who is a medical practitioner and a treating doctor of the MIP.

7.  Before the hearing by the Board, the Appellant applied to withdraw the guardianship application.

8.  On 17 July 2024, the Board conducted the hearing.  The Board consolidated both the application and the withdrawal to be heard together.

9.  The Appellant, the Added Party, the MIP’s two sons and a medical social worker of the DSW gave evidence at the hearing.  The MIP did not attend the hearing, but the Chairperson and a member of the Board had paid her a visit at the Appellant’s home in the morning of the hearing.  The Interview Note was made available to the parties at the hearing.

10.  The Board also considered documentary evidence at the hearing, including the two medical reports of the MIP, two Social Enquiry Reports by the social worker, and some letters from the Added Party kept confidential to the other parties at his request.

Decision of the Guardianship Board

11.  On 17 July 2024, the Board made a Guardianship Order after the hearing that the DSW be appointed as the guardian of the MIP with the following powers, to the exclusion of any other person:

“(a) to require [the MIP] to reside at such place as may be specified by the guardian. (s.59R(3)(a) of MHO);

(b) to convey, or to arrange the conveyance of [the MIP] to the place so specified by the guardian, and such reasonable force may be used as is necessary for the purpose. (s.59R(3)(b) of MHO);

(c) to require [the MIP] to attend at places and times so specified by the guardian for the purpose of medical or dental treatment or occupation, education or training. (s.59R(3)(c) of MHO);

(d) to consent to medical or dental treatment on behalf of [the MIP], but only to the extent that the Subject is incapable of understanding the general nature and effect of such treatment. (s.59R(3)(đ) of MHO);

(e) to require access to [the MIP] to be given at any place where the Subject is residing, to any doctor, approved social worker or community nurse. (s.59R(3)(e) of MHO);

(f) to hold, receive or pay the monthly sum of HK$20,000 on behalf of [the MIP]for the maintenance or other benefit of [the MIP] as if the guardian were a trustee of that monthly sum. (s.59R(3)(f) of MHO).”

12.  The Board imposed the following Additional Conditions to the Order:

“Mortgage loan

(j) The [Added Party], the grandson of [the MIP], may make transfers or deposits into [the MIP’s] bank account [details omitted herein] for the purpose of settling the outstanding mortgage loan as governed by the terms and conditions of the mortgage of the [the MIP’s] landed property.

(k) Transfers out of [the MIP’s back account] pursuant to any existing autopay instruction previously set up by [the MIP] may continue subject to the establishment of an alternative arrangement by the [Added Party] with the said bank to repay the mortgage loan of [the MIP].

(l) To the extent permitted by the mortgagor (sic) bank of [the MIP’s] landed property and for the best interests of [the MIP], the [Added Party] may make an alternative arrangement with the said bank to repay the mortgage loan of [the MIP] while avoiding the need to mobilize [the MIP’s] savings [details omitted], provided that the property interest of the Subject shall remain unaffected.

(m) [The Added Party], is required to produce all the relevant statements concerning [the MIP’s] savings [details omitted] including any receipts and records of transactions with the said bank on a monthly basis or as instructed by the guardian for the purpose of monitoring the use of that account.

[The MIP’s] will

(n)  The [Appellant] is required to forthwith produce to the guardian the original copy of the MIP’s will and such original copy shall be kept by the guardian in a safe or other depository for custody while this Order is in force.”

Reasons of the Guardianship Board

13.  In the reasons given by the Board also dated 17 July 2024, the Board the relationship between the Appellant and the Added Party used to be good.  Then, the Appellant noticed that the MIP grow thinner and had a fall, and alleged that the Added Party had delayed treatment of the MIP for three months, and he failed to discover that the MIP had colon cancer.  The Appellant also said that her visits to the MIP was controlled and inconvenient.  There were heated arguments between the family members, who claimed it was the Appellant’s responsibility for the MIP’s medical care.  Then, the Added Party dismissed the domestic helper, and the Appellant took the MIP to her home.

14.  The Appellant applied for emergency guardianship because of fear of neglect of the MIP, and she withdrew it because of fear of a Coroner’s inquest in due course.  The Added Party originally agreed to the withdrawal the application, but later changed his mind because he suspected the Appellant might have ulterior motive to sell the HOS flat and he would have nowhere to live.

15.  The Board visited the Appellant’s flat, and found the living arrangement was good although the MIP had a temporary bed.  The Appellant said that she would not continue to care for the MIP if she were to move back to the HOS flat.  The Board had not visited the HOS flat.

16.  On the dispute regarding the HOS flat, the Appellant stated she had provided $800,000 towards the purchase price, and would like to claim it back because the other siblings did not contribute their shares.  She proposed the sale of the flat and reimbursement of her contribution.

17.  The Added Party claimed that he was the beneficiary of the MIP’s will and he would inherit the HOS flat.  The will was kept by the Appellant but she was unwilling to produce it, alleging that the MIP would not like it.

18.  The Board stated that although the HOS flat was registered under the MIP’s name, the Added Party was the de facto mortgagee (sic). The Added Party was concerned that he would have nowhere to live if the flat were sold.

19.  The Board was against “mobilization” (taken to mean liquidation) of the HOS flat.  The Board was also concerned with the non-production of the MIP’s will by the Appellant. The Board considered that the appointment of the DSW as the Public Guardian could provide for the will to be retained by a neutral person.

20.  The Board did not foresee any problem with the MIP living in either in the Appellant’s home or the HOS flat, provided that the MIP do get sufficient monitor by one or more carers, where the Appellant has sufficient resources to employ.  The Board considered the Appellant had showed insufficient empathy for the financial situation of the other family members.  The Board was prepared to allow the Appellant to be the MIP’s appointee of her welfare money, subject to consideration of feasibility of the guardian.

21.  In the premises, the Board appointed the DSW as the Public Guardian who is empowered decide where the MIP reside, and directed the Appellant to produce the will to the DSW.

Preliminary Matters

22.  At the call over hearing of the Appeal on 24 September 2024, it was queried whether the Appeal was out of time.  Miss Yu, for the Appellant, submitted that under s.59W(2)(a) of MHO, an appeal from any decision of the Guardianship Board shall be instated within 28 days after the day the decision was sent to the person appealing.  Since the decision dated 17 July 2024 was only sent to the Appellant on 30 July 2024, the Appeal was not out of time.  No further point was taken on this.

23.  The Added Party was represented by Mr Chin, Counsel, at the call over hearing.  Mr Chin stated that the Added Party supported the guardianship by the DSW, and objected to the sale of the HOS flat.  Miss Yu pointed out that question relating to a MIP’s property is a matter under Part II of MHO, and there was no such application as yet.  Mr Chin said he would take further instructions on the matter.

24.  It was pointed out by the Court that even if the Added Party were not to formally take part in the Appeal, he could always attend the hearing as an interested party.  It transpired that the Added Party was not present at the Appeal hearing.  Mr Hon, for the DSW, said the notice of hearing of the Appeal was sent to the Added Party, and there was no information on his attendance.

25.  At the call over hearing, I also suggested the parties to consider mediation before the hearing of the Appeal, but no mediation was arranged.

26.  Also at the call over hearing, Miss Wong, now with Mr Hon, for the DSW, submitted that the Appeal seemed to involve mixed question of facts and law, and asked for the transcript of the hearing before the Board be bespoken.

27.  On 24 October 2024, solicitors for the Appellant wrote to the Board for the records and transcript of the proceedings.  The Board took time to consider the provision of the records to the parties.

28.  On 31 July 2025, The Board wrote to the Court indicating it was willing to release the audio recording of the hearing to the Court, but made the reservation that it should not be a precedent for future appeals.

29.  On 11 August 2025, the Court informed the parties the availability of the audio recording before the Board and enquired whether they would require the transcript thereof.

30.  On 15 September 2025, the Department of Justice acting for the DSW indicated that it would remain neutral on the Appeal, and did not seek to rely on the transcript anymore.

31.  Further, the Department of Justice submitted a Social Enquiry Report of the DSW dated 11 September 2025, which stated that should the present care be provided to the MIP, a guardianship Order might not be needed.

32.  At the Appeal hearing, Mr Hon indicated he was not contesting the Appeal, but appeared only to assist the Court, if so required.

Grounds of Appeal

(1)  The Board erred in rejecting the withdrawal of the application and/or failed to give adequate reasons;

(2)  The Board erred in ordering the letters submitted by the Added Party be kept confidential and not disclosed to the Appellant;

(3)  The Board erred in taking into account irrelevant factors, including:

(a)  The dispute on the potential sale of the HOS flat;

(b)  The Appellant’s refusal to produce the will of the MIP;

(c)  The Appellant had shown insufficient empathy for the financial situation of the other family members.

(4)  The Board erred in failing to take into account and/or disregard the following points:

(a)  The views of the MIP;

(b)  The medical needs of the MIP;

(c)  Any particular needs of the MIP.

(5)  In the light of the above, the Board’s decision is unreasonable such that no reasonable board duly constituted would have made.

Legal Context

33.  Section 59W of the MHO provide that:

“Appeal to Court

(1) Any party to proceedings before the Guardianship Board may appeal to the Court from any decision of the Board in that proceeding—

(a) on a question of law; or

(b) with the leave of the Court, on any other question.

(2) An appeal by any person under this section shall be instituted—

(a) within the period of 28 days after the day on which any document setting out the terms of the decision of the Board is sent to the person; or

(b) within such further period as the Court may allow.

(3) On the hearing of an appeal under this section, the Court shall determine the appeal and may make such order as it thinks fit including the following, namely—

(a) an order affirming the decision of the Guardianship Board;

(b) an order setting aside the decision of the Guardianship Board;

(c) an order remitting the case to be heard and decided again by the Guardianship Board (either with or without the hearing of further evidence) in accordance with the directions of the Court.

(4)  Pending the determination of an appeal by the Court, and subject to any order made by the Court to the contrary, the appeal operates to stay the decision appealed against.”

34.  Section 59R of the MHO provides that:

“Term and effect of guardianship order

(1) …

(2) …

(3) Subject to subsections (6) and (7), a guardianship order may confer on the guardian appointed under this Part, to the exclusion of any other person one or more of the following powers, namely—

(a) the power to require the mentally incapacitated person to reside at such place as may be specified by the guardian;

(b) the power to convey, or to arrange the conveyance of, the mentally incapacitated person to the place so specified by the guardian, and such reasonable force may be used as is necessary for the purpose;

(c) the power to require the mentally incapacitated person to attend at places and times so specified by the guardian for the purpose of treatment or special treatment (within the meaning of section 59ZA) or occupation, education or training;

(d) the power to consent to that treatment (other than special treatment) on behalf of the mentally incapacitated person but only to the extent that the mentally incapacitated person is incapable of understanding the general nature and effect of any such treatment;

(e) the power to require access to the mentally incapacitated person to be given, at any place where the mentally incapacitated person is residing, to any registered medical practitioner, approved social worker, or other person (if any) specified in the order;

(f)  the power to hold, receive or pay such monthly sum (within the meaning of section 44B(8)) specified in the order on behalf of the mentally incapacitated person for the maintenance or other benefit of that person as if the guardian were a trustee of that monthly sum.”

35.  Section 59S of the MHO provides that:

“Guardians

(1) A person (other than the Director of Social Welfare) shall not be appointed by the Guardianship Board as a guardian of a mentally incapacitated person received into guardianship under this Part unless the Board is satisfied that—

(a) the proposed guardian has attained the age of 18 years;

(b) the proposed guardian is willing and able to act as a guardian;

(c) the proposed guardian is capable of taking care of the mentally incapacitated person;

(d) the personality of the proposed guardian is generally compatible with the mentally incapacitated person;

(e) there is no undue conflict of interest, especially of a financial nature, between the proposed guardian and the mentally incapacitated person;

(f) the interests of the mentally incapacitated person will be promoted by the proposed guardian, including overriding the views and wishes of that person where the proposed guardian (once appointed) considers such action is in the interests of that person;

(g) despite paragraph (f), the views and wishes of the mentally incapacitated person are, in so far as they may be ascertained, respected;

(h) the proposed guardian has consented in writing to the appointment as a guardian.”

36.  Rule 7 of the Mental Health Guardianship Board Rules (Cap. 136E) (“MHGBR”) provides that:

“Disclosure of documents

(1) Subject to subsection (2), the secretary shall, as soon as practicable, send a copy of every document the Board receives which is relevant to a guardianship application to the applicant and any person who has been sent a copy of the application under section 59N(3)(a) or (c) of the Ordinance, and any of those persons may submit comments thereon in writing to the Board.

(2) The secretary shall not send a document referred to in subsection (1) (including any document containing comments referred to in that subsection) to a person referred to in that subsection if the Board, after considering the views, if any, of the person who prepared the document, has stated in writing—

(a) that it believes that sending the document to that person would adversely affect the health or welfare of the mentally incapacitated person or others; and

(b) its reasons for believing that sending the document to that person would have that effect.

(3)  …”

37.  Rule 22 of the MHGBR provides that:

“Withdrawal of application

(1) An application may be withdrawn at any time at the request of the applicant provided that the request is made in writing and the Board agrees.

(2)  Where an application is withdrawn, the secretary shall so inform the parties.”

38.  In L v Guardianship Board & Anor [2023] 3 HKLRD 1, Deputy High Court Judge Leung (as he then was) summarised the following approach in assessing the merits of the appeal from the Board:

“31. The court has said that guardianship applications and reviews should primarily remain matters for the Board to decide. It is only where a question of law arises or where the particular application raises a special matter that merits the court’s attention or possible intervention that the court should take it upon itself to decide the matter: see Re C (HCMP 1327/2007, [2007] HKEC 1730, 20 September 2007, [50].

32. By the same token, the consideration in an application like the present one is never for the court to form its own views of first what the guardian should have done in the circumstances, and second whether the mentally incapacitated person should continue to be put under such guardianship. What the court should consider is what information and evidence were before the Board and whether or not the same reasonably afforded the Board with the basis for its decision. In case of appeal on question of fact or one of mixed law and fact, the test is not whether the court would be minded to come to a different decision from that of the Board, but whether no rational and reasonable Board would have come to such decision being challenged.”

Analysis

39.  R.22 of the MHGBR provided that withdrawal of the guardianship application is subject to the agreement of the Board.  In the context of this case, the Board’s decision in making the Guardianship Order would have the effect of impliedly rejecting the withdrawal application. Hence, it would be sufficient to look at the decision itself.

40.  Miss Yu’s main point is that the dispute as to the beneficial interest and potential sale of the HOS flat are irrelevant to the needs of the MIP’s residence and medical treatment.   Any sale of the flat would be the subject of an application for the management of the financial affairs by a Committee under Part II of the MHO.  Hence, the lack of empathy about the financial situation of the other family members by the Appellant is also irrelevant.  The production of the MIP’s is irrelevant or even ultra vires the Board’s powers under s.59R of the MHO. 

41.  As I see it, the immediate trigger point of the Appellant taking the MIP to her home was the dismissal of the domestic helper and urgent application to a charitable home by the Added Party.

42.  The deeper cause might have been the dispute over the beneficial ownership of the HOS flat between the Added Party and the Appellant.  Be that as it may, there is no threat to the existing provision of the HOS flat as a residence for the MIP because its legal title is under the name of the MIP.  The MIP lacked the mental capacity to execute any sale documents and the sale could only take place with the order of the Mental Health Court under Part II of the MHO.  Further, since there is a dispute as to the beneficial ownership or apportionment thereof, even the Mental Health Court would not make any decision on the sale without the dispute properly resolved by a court of civil jurisdiction.  If the Appellant were proven to have contributed to the purchase of the HOS flat and she wished to have it back, subject to possible arguments as to the nature of the contribution, a lack of empathy for the weaker financial positions of the other family members, even if true, is neither here or there.

43.  The issue of testamentary succession of the HOS flat would also likely to be decided upon taking into account any contest on the beneficial ownership of the flat.  Such contest is not something where the Board or even the Mental Health Court could decide summarily.

44.  The Board did not give any reason for keeping the letters by the Added Party confidential, hence, it could not be told whether it was for the health of the MIP or anyone concerned as provided for in r.7 of the MHGBR, or that the documents did not relate to the irrelevant consideration of the dispute on the beneficial ownership of the HOS flat.  It is unfair that the Appellant could not submit on them, albeit on principle without the details, even if confidentiality were justified.

45.  In the event, where the status quo of the HOS flat is effectively maintained, the choice of the Board is really the choice between the HOS flat and the Appellant’s home.  The Board has appeared indifferent, and had effectively left it to the choice of the Public Guardian.  The Public Guardian had indicated that its stance is neutral.

46.  One consideration of the residence was linked to the provision of care and attention to the MIP’s medical needs by the Appellant.  The Board had praised the care and attention for the MIP/s treatment through the Appellant and her husband who is also a treating doctor of the MIP.  The fact that the Appellant wished to live with the MIP before her continued care and attention of the MIP must be considered as a given factor, as voluntary efforts by the carer could not really be forced upon her against her will.

47.  Miss Yu submitted that the MIP’s wish is also relevant under s.59(g) of the MHO.  In the 2^nd Social Welfare Report placed before the Board, the social worker asked the MIP about her restoration to the HOS flat, she replied that she wanted her daughter (ie the Appellant) to decide for her, and also to ask the Appellant’s husband.  And during the Board’s home visit, the MIP said she was comfortable in both the HOS flat as well as the Appellant’s home.

48.  Miss Yu submitted that the Board failed to consider the MIP’s wish, which is relevant as she could still express it in this case.

49.  Since the Guardianship Order placed the ultimate decision of the issues of residence and medical treatment on the Public Guardian, the DSW had submitted a Supplemental Social Welfare Report.  The DSW opined that there was no suggestion that the MIP was not provided with the necessary care, and as long as the MIP continues to receive the existing care, there may not be a need for a Guardianship Order.

50.  Hence, Miss Yu submitted that the Guardianship order should be set aside.

51.  I agree with Miss Yu.  And I am comforted by the DSW’s stance, as after all, the determination of any legal question must ultimately take into account the paramount need of the MIP’s continued welfare and well-being.

52.  In the event, the Guardianship Order is set aside, and there is no need for any remission to the Board for further hearing.

Costs

53.  Miss Yu has made it clear before the hearing of the Appeal that she would not be seeking any costs in the event of success upon indication of the DSW not contesting her appeal.  Hence, there is no order as to costs.

54.  I lift the restriction on reporting of this case, and anonymity has already been instilled in this judgment.

55.  Lastly, I thank Miss Wong, Mr Hon and Miss Yu for their assistance.