RE HCFA

HCMH 77/2021

[2022] HKCFI 2632

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MENTAL HEALTH CASE NO 77 OF 2021

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D E C I S I O N

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1.  Matters call for determination as preliminary issues in these proceedings commenced by the applicant. Hence direction by this court for written submissions from the applicant and the Official Solicitor. This court now determines the issues on paper only.

Background

2.  The applicant filed his ex parte originating summons herein for an inquiry as to whether HCFA is incapable, by reason of mental incapacity, of managing and administering his property and affairs pursuant to section 7 of Part II of the Mental Health Ordinance Cap 136 (“MHO”) as well as the appointment of himself as the committee of HCFA pursuant to section 11 of the MHO. The applicant lodged, amongst other documents, two medical certificates in respect of the alleged mental incapacity of HCFA and a certificate of family and property of HCFA.

3.  Upon consideration of the documents, the Official Solicitor raised the issue of whether or not the applicant manages to establish that he is a relative of HCFA as defined under section 2 of the MHO so as to entitle him to commence these proceedings. On this, the Official Solicitor and the applicant hold different views. They also hold different views in respect of the parties that should be served with the notice of the intended inquiry.

4.  Hence this court’s direction dated 28 April 2022 for these issues to be determined as preliminary issues before any order for inquiry could be made. This court also directed the applicant to verify by affidavit his answers to the requisitions so far raised by the Official Solicitor by way of correspondence before they could be properly taken into consideration as his evidence.

The relevant provisions

5.  Section 7(1) of the MHO provides that the court may on application under this section make an order for an inquiry whether any person subject to the jurisdiction of the court who is alleged to be mentally incapacitated is incapable, by reason of mental incapacity, of managing and administering his property and affairs.

6.  Section 7(3) provides that application for such inquiry may be made by any relative of the person alleged to be a mentally incapacitated person, but if no such application is made by the relative, then by (a) the Director of Social Welfare; (b) the Official Solicitor; or (c) any guardian of that person appointed under Part IVB.

7.  Under section 2:

“relative (親屬), in relation to a mentally incapacitated person, means any of the following persons being, in the case of persons referred to in paragraphs (b) to (i) of this definition, persons who have attained the age of 18 years-

(a) spouse or reputed spouse;

(b) child or child’s spouse;

(c) parent or parent-in-law;

(d) sibling or sibling’s spouse;

(e) grandparent or grandparent-in-law;

(f) grandchild or grandchild’s spouse;

(g) uncle or aunt;

(h) nephew or niece or spouse of nephew or niece;

(i) cousin or cousin’s spouse;

(j) any person with whom the mentally incapacitated person resides or has resided;”

Locus of the applicant

8.  According to the applicant, HCFA’s family is of XXXXXXX origin. HCFA’s parents passed away in XXX and XXX respectively. His wife passed away in XXX. He has no child. He has seven siblings but only three of them are surviving. They reside in XXXX or XXXX. The other deceased siblings of HCFA have children, with whom HCFA and the applicant have maintained no contact.

9.  HCFA has resided at his matrimonial home in Hong Kong by himself since the passing of his wife. Diagnosis of Parkinson’s disease and dementia was made in XXXXXXXXXXX, which entailed his hospitalization. Up to the present, HCFA has been residing at an elderly care home.

10.  HCFA’s sister-in-law (his wife’s sister) is based in Hong Kong. So are the applicant and his own siblings. The sister-in-law is said to have indicated to the applicant orally that she would not participate in the affairs of HCFA. None of the applicant’s own siblings is said to be interested either.

11.  According to the applicant, he has been entrusted by one of the three surviving sisters of HCFA overseas to attend to the care of HCFA in Hong Kong. So he did by arranging the medical care and elderly home as well as contacting the social worker. The applicant also produced the written consent of the three surviving sisters of HCFA to the appointment of the applicant as the committee of HCFA. The sister of HCFA entrusting the applicant with the present application is also said to be financing the applicant’s legal costs in these proceedings.

12.  The applicant applies in his alleged capacity as the great grandson of the brother of HCFA’s grandfather. In the medical certificates, the applicant was said to be the son of HCFA’s cousin.

13.  The applicant can produce no official proof of the alleged relationship between himself and HCFA. The fundamental question is whether the applicant, even as alleged, is a relative of HCFA as defined under section 2.

14.  The Official Solicitor, and I think fairly, points out that the applicant, even as alleged, does not fall within the meaning of ‘relative’ as defined under section 2. The applicant in the submission on his behalf accepts as a matter of statutory construction that he is strictly neither a nephew nor a cousin of HCFA. However, the applicant argues that the definition of ‘relative’ in section 2 is not or not intended to be strict or exhaustive.

15.  The applicant argues:

(1)  the dictionary meaning of ‘cousin’ is wide enough to include a distant relation;

(2)  that a ‘relative’ as defined under section 2 includes any person who is not related but with whom the mentally incapacitated person resides or has resided supports the relaxed construction contended;

(3)  that section 14 empowers the court to determine which of the relatives shall attend any proceedings connected with the management of the estate also supports the relaxed construction contended; and

(4)  section 7(3) is not expressed in mandatory terms.

16.  ‘Relative’, if not defined for the purpose of the MHO, would have been ambiguous and uncertain, perhaps particularly in a Chinese society. However, the term is indeed defined under section 2 to mean the ten categories of the persons described in paragraphs (a) to (j) of the section.

17.  Insofar as cousin, nephew and niece are concerned, their meanings are not ambiguous. For what is worth, the Shorter Oxford English Dictionary cited by the Official Solicitor says that ‘nephew’ is “a son of a person’s brother or sister; a son of a brother- or sister-in-law”. The applicant also cites the Cambridge Dictionary where ‘cousin’ is described to mean “a child of a person’s aunt or uncle”. The lack of controversy over the meaning of ‘cousin’ and ‘nephew’ (or ‘niece’) of a person is obvious.

18.  However, the dictionary meaning of ‘cousin’ cited by the applicant goes further to suggest the inclusion of “more generally a distant (= not close) relation” of a person. This court does not rule out the possibility or occasion where some may refer to a distant relation of a person as generally his ‘cousin’. However, that cannot have any place in the construction of ‘cousin’ in the section when the term per se is not ambiguous.

19.  Further, the definition of ‘relative’ under section 2 is peculiar for the purpose of the MHO. Insofar as cousin, nephew and niece are concerned, the definition of them as relatives for the purpose of the MHO extends to their spouses. If the applicant were right, this would have meant that the spouse of any distant relation of a person, once accepted as ‘cousin’, would also fall within the definition of ‘relative’ for the purpose of section 2. Such extended meaning could hardly be intended or contemplated.

20.  Importantly, a person who is not related to the mentally incapacitated person as described in paragraphs (a) to (i) are expressly included under paragraph (j) subject to the criterion that such person either resides or has resided with the alleged mentally incapacitated person. The applicant argues that the inclusion of such a category of persons who are not related to the mentally incapacitated person as described in paragraphs (a) to (i) lends weight to his contention that the construction of any of the categories of (related) persons set out under those paragraphs is never intended to be strict. I disagree. If anything, the argument would have been that it is the other way round.

21.  In view of the wordings of the section and the structure of the categorization of persons within the definition of ‘relative’, there is in my judgment no room for the argument that the definition of ‘relative’ under section 2 is not exhaustive. Nor is there room for arguing that a generally distant relation, who is neither one of those mentioned in paragraphs (a) to (i) nor one falling within paragraph (j), should still be accepted as a relative for the purpose of the MHO.

22.  As to section 14, it provides that:

“The Court shall once in the matter of each enquiry, and, may afterwards from time to time, determine whether any one or more, and, if any, how many and which of the relatives or next-of-kin shall attend before the Registrar at the cost of the estate in any proceeding connected with the management thereof, and, if any such relative or next-of-kin is an infant, may from time to time appoint a fit person to be his guardian for the purpose of such proceeding.”

23.  The court has the power to allow or direct any relative or next-of-kin of the mentally incapacitated person to be heard in the inquiry. The court also has the power to direct any relative or next-of-kin to attend the Registrar in connection with the management of the estate of the mentally incapacitated person from time to time afterwards. This section does not empower the court to determine the locus of a person to apply for an inquiry pursuant to section 7 other than in accordance with the definition of ‘relative’ under section 2.

24.  The reference to section 7(3) does not assist the applicant either. It is expressed in permissive term in that application for inquiry may be made by a relative, as defined in section 2, or if no such application is made by a relative, then anyone of the Director of Social Welfare, the Official Solicitor or the guardian. This court has no argument about the proposition that a relative, as defined in section 2, is generally preferred to these three other bodies in making an application for inquiry. However, this does not further mean, as the applicant argues, that any person who is not a relative as defined in section 2 should have locus or priority to make the application on the basis that he or she is somehow close to or interested in the welfare of the alleged mentally incapacitated person.

25.  This brings us to the applicant’s secondary position. The applicant argues that even if he is not a relative of HCFA as defined under section 2, he nevertheless is HCFA’s close friend, who takes interest in HCFA’s affairs and is in the best position to be appointed as the committee. In support, the applicant cites various decided cases: Re THM [2011] HKFLR 1 and Re LHHK, HCMH 121/2019 (6 October 2020). He also refers to the text of Heywood and Massey: Court of Protection Practice (at §8-009).

26.  This is where the applicant mixes up the consideration of the locus of a person in making an application and the suitability of a person as a candidate for appointment as the committee (or receiver). Whilst this may seem to be the usual case, it is not a must that the applicant and the person to be appointed as the committee is the same person. The suitability of a person to be considered for appointment as the committee does not answer or justify his lack of locus to make the application. The discussion in the cases and text cited by the applicant addresses the issue of suitable candidates for the appointment, and therefore does not assist the applicant if he has no locus to make the application.

27.  Sections 2 and section 7(3) read together, the MHO envisages virtually no situation where a person believed to be suffering from mental incapacity for the purpose of Part II of the MHO will be left with no one having locus to make an application for an inquiry and appointment of a committee in respect of his or her estate. This also militates against the necessity and justification for the so-called relaxed construction of any of the category of persons defined as ‘relative’ under paragraphs (a) to (i) of section 2 contended by the applicant. Likewise, there is in my judgment no room for introducing the category of ‘friend’ or ‘close friend’ other than a person who meets the criterion under paragraph (j) of the definition of ‘relative’ under section 2.

28.  The applicant does not fall within the definition of ‘relative’ for the purpose of the MHO, and therefore has no locus standi to commence these proceedings. As mentioned, whether or not he may be a candidate for appointment as the committee of HCFA in a properly instituted application will be quite another question.

Service

29.  As the present application was commenced by the applicant without locus, the proceedings may not proceed and it becomes unnecessary to determine the issue of service of the notice of inquiry. That said, I should state my view on this issue for future purpose as explained below.

30.  Section 8(2) gives the court discretion to direct a copy of the notice of inquiry under section 8(1) to be served upon any relative of the allegedly mentally incapacitated person. The exact relative(s) that should be served depend on the circumstances of each case: see Re M, HCMP 25/2005 (1 November 2005) at §§8-10.

31.  It matters not whether the relative to be served resides in Hong Kong or overseas. In the case of service on a relative who resides overseas, the court may direct the mode of service. The paramount concern is that the notice will reach the relative served.

32.  As mentioned, HCFA has three surviving siblings residing overseas, with whom he, and now the applicant, has maintained contact. The applicant also reveals that some of the deceased siblings of HCFA have surviving spouses and children. They are therefore relatives for the purpose of the MHO. However, the applicant explains that there was neither contact between HCFA or the applicant with them. The applicant has no information about the whereabouts of these relatives. However, it is unclear if it is possible to ascertain the contact information of these relatives from the surviving siblings of HCFA with whom the applicant has contact.

33.  The applicant states that the surviving spouses and children of the deceased siblings of HCFA take no interest in the affairs and well-being of HCFA. That may or may not be the case. However, what cannot be denied is that these relatives of HCFA may have their views concerning the interest of HCFA in terms of the management of his assets. According to the information, HCFA has substantial assets in the form of cash and various landed properties, but it is unknown if he has made a will. The concern about the impact on their potential interest arising out of the management of the estate of HCFA, albeit still primarily considered in his best interest, also cannot be ruled out: see Re S, HCMP 1287/2004 (21 May 2004) at §4.

34.  At least, the three surviving siblings should be served with the notice of inquiry. Whilst the applicant refers to the written consent of the three surviving siblings of HCFA to the application and the proposed appointment of the applicant as the committee, they should be given the opportunity to consider their positions with the information about the estate and the circumstances of HCFA set out in the documents filed in support of the application. They may or may not maintain their consent, and may or may not seek leave from the court to make representation at the inquiry. One way or the other, that would be their informed decisions and eventually a matter of leave of the court.

35.  The issue of service of the notice of inquiry on the relatives will have to be re-visited when a validly filed application concerning HCFA is before the court.

The way forward

36.  The above answer to the preliminary issue of locus has nothing to do with the merit of the consideration of placing the affairs and property of HCFA into the hands of a committee, if HCFA is found to be mentally incapacitated. Further, if a committee should be appointed, the above finding does not exclude the consideration of the suitability of the applicant herein as a candidate for the appointment.

37.  Now this court and the Official Solicitor have been alerted to the circumstances of HCFA, amongst which there is prima facie medical evidence in respect of his mental incapacity. In the circumstances, this court takes the view that investigation into the circumstances and welfare of HCFA should not cease, notwithstanding the apparent fate of the present application for lack of locus of the applicant.

38.  Hence the following directions:

(1)  The applicant is directed to liaise with HCFA’s relative(s), as defined in section 2 of the MHO and who was/were entitled to take out an application pursuant to section 7 as at the date of the commencement of the proceedings herein, to ascertain if any of them will come forward and adopt the proceedings herein by seeking to substitute the applicant as the applying party for the appointment of the applicant or any other suitable person in Hong Kong as the committee of HCFA;

(2)  In the absence of application by the relative(s) as mentioned on (1) above within 30 days, the applicant shall apply for leave to withdraw the proceedings herein or the same will be dismissed by this court on own motion on the ground of lack of locus of the applicant;

(3)  In the event that the proceedings herein are withdrawn or dismissed and no application pursuant to section 7 is made by the relative of HCFA, the Official Solicitor is requested to liaise with the applicant and/or the relatives of HCFA and/or the Director of Social Welfare with a view to investigating into the need for an application to be made by the Director of Social Welfare or the Official Solicitor pursuant to section 7(3) of the MHO;

(4)  Costs of these proceedings are reserved pending the above;

(5)  Liberty to apply.

39.  As always, this court is grateful for the assistance of the Official Solicitor.

40.  This court sees some juridical value in the above discussion of the preliminary issue, which is worth publishing. Before this court so directs, the applicant and the Official Solicitor have 7 days after the handing down of this decision to submit their succinct written comment, if any, including any request for redaction of any part of the decision for the purpose of publication.