C v. B

CACV 83/2018

[2019] HKCA 321

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 83 OF 2018

(ON APPEAL FROM HCMH 19/2016)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  We heard this appeal brought by the applicant against the judgment of Lok J of 2 March 2018 refusing to appoint a committee for Mrs A. After hearing counsel on 14 February 2019, we reserved our judgment. This is our judgment in the appeal.

2.  Lok J [“the Judge”] was satisfied that Mrs A is incapable, by reason of mental incapacity, of managing and administering her property and affairs.  The Judge refused to appoint a committee for the reasons he gave in a judgment of 2 March 2018. 

3.  It should be stated at the outset that the applicant (a daughter of Mrs A whom the Judge referred to as C, and we adopt the same anonymization) did not seek a committee to manage and administer the property and affairs of Mrs A generally.  C only sought the appointment of a committee to investigate the circumstances leading to the making of these documents by Mrs A (identified at (2) of the prayers in the Notice of Appeal as the Impugned Documents)[1] and insofar as it thinks fit to seek leave of the court to take action, including commencing litigation to set aside the Impugned Documents:

“ (a) all powers of attorney and enduring powers of attorney granted by Mrs. A;

(b) all wills and any codicils thereto made by Mrs. A;

(c) the 餽贈契 in Chinese dated 12 December 2012, the 立餽贈契的聲明 in Chinese dated 12 December 2012 and the 轉讓契in Chinese dated 20 December 2012 executed by Mrs A;

(d) the 鄭重聲明 in Chinese dated 2 May 2014 signed by Mrs. A; and

(e) the document in Chinese dated 5 May 2014 signed by Mrs. A in respect of her directions and wishes relating to healthcare and medical decisions,”

4.  The other protagonist in these proceedings is the other daughter of Mrs A, whom the Judge anonymized as B.  We will follow the same course.  She participated in the proceedings as intervenor.

Background

5.  The factual background was set out at length by the Judge at [5] to [79] of the judgment.  Since the judgment has been reported[2], we shall only highlight some important matters in the background. 

6.  In 2004, Mrs A executed a will which, in broad terms, divided her estate between B and C in equal shares. 

7.  The Impugned Documents were executed by Mrs A between 2006 and 2014.  For present purposes, it is significant to note that two Enduring Powers of Attorney [“EPOAs”] were executed by Mrs A on 21 April 2011 appointing B as her attorney.  These EPOAs were executed in the presence of a solicitor and a registered doctor.  The EPOAs were only disclosed by B after the commencement of the proceedings under Part II of the Mental Health Ordinance, Cap. 136 in the court below in her 4^th affirmation filed on 26 May 2017.[3]

8.  Another set of documents executed by Mrs A which fall within the scope of the Impugned Documents are referred as the Gift Documents[4], including a Deed of Gift executed on 12 December 2012.  By that Deed, except a sum of $200 million in two bank accounts, Mrs A made a gift of all her properties and assets to B. 

9.  The Deed of Gift was also only disclosed by B in her 4^th affirmation of 26 May 2017.  Such disclosure led to the adjournment of an appeal and its effect will be determined by A Chan J in the context of a High Court Action commenced by Mrs A against C for serious and substantial claims on 22 November 2010.  The case had been tried before A Chan J who handed down judgment on 29 November 2016 finding against C.  C’s appeal against that judgment was heard on 24 October 2017 but was adjourned due to the disclosure of the Deed of Gift.  The issues concerning Mrs A’s locus and application by B to join in that action were remitted to the Court of First Instance.  We are told that the hearing concerning the remitted issues will take place in the latter part of this year.

10.  Another document disclosed by B in her 4^th affirmation was a will executed by Mrs A in February 2008.  By that will, she appointed B as the sole executor and beneficiary of her estate.  The will is one of the Impugned Documents.    

11.  Mrs A suffered a minor stroke in October 2010. C has not been able to see Mrs A since October 2010.  On 5 December 2010, Mrs A suffered another stroke.   

12.  On 7 June 2014, Mrs A suffered a major stroke. According to the medical report of Professor Raymond Cheung who had provided daily medical attendance to Mrs A since 8 December 2015, after that stroke she had been stabilized after treatment in the Intensive Care Unit for 54 days. Her condition in March 2016 (when Professor Cheung gave his report) was that she was unable to speak, unable to write or do any hand gesture, unable to read and incapable of nodding or turning her head.  She was confined to bed or chair and was unable to maintain basic self-care or manage and administer her affairs.

13.  On 23 March 2016, her solicitors notified the court that Mrs A was unfit to give further instructions.  On 19 April 2016, the court appointed an independent solicitor to act as next friend in the action. As mentioned, the trial of that action took place before A Chan J in 2016. 

14.  On 16 May 2017, B registered one of the EPOAs. She then disclosed the same in her 4^th affirmation on 26 May 2017. 

15.  After such disclosure, the Judge raised with counsel if the EPOAs have any significance in the context of the application for appointment of committee for Mrs A at a hearing on 31 August 2017.  Counsel for C told the Judge that for the purpose of the Part II proceedings C would not make any application for revocation of the EPOAs though she reserved the right to do so on some other occasion.

16.  Mrs A was examined by the court appointed experts on 20 September 2017.  According to Dr Li, one of the experts, Mrs A was totally dependent on carers on activity of daily living.  She could not recognize her relatives or the people who looked after her.  She was diagnosed to be suffering from severe dementia.  Similar opinion was expressed by the other expert, Dr Chung.  Dr Chung further opined that Mrs A did not demonstrate any meaningful communications or responses during the examination and the severe dementia caused severe limitation of all her daily activities.  He also noted that the dementia was caused by medical diseases and brain damage is confirmed.  Her medical illnesses required intensive medical treatment.  

The judgment below

17.  The Judge declined to appoint a committee though he acknowledged that the court can do so notwithstanding the non-revocation of EPOAs.  Thus, after reviewing the relevant authorities and submissions, he concluded at [111] that the Mental Health Court remains as the ultimate safeguard for the interests of a mentally incapacitated person [“MIP”].  At [112], he said:

“ Whether the court should intervene depends very much on the facts of each individual case. It would be counterproductive for the court to provide an exhaustive list as to when the court should appoint a Part II committee to co-exist with an EPOA. On the one hand, the Mental Health Court should give due weight to the wishes of the MIP as expressed in his EPOA. On the other hand, there may well be other circumstances which require the court to intervene to protect the interests of the MIP. Ultimately, the interests and the requirements of the MIP, not those of the other family members, remain the main considerations. The Mental Health Court should guard against any attempt by the family members of the MIP to make use of the mental health proceedings to advance their own personal interests.”

18.  In Section C of the judgment, the Judge explained how the discretion should be exercised in the present case.  He examined the matter from the perspective of the best interests or the requirements of Mrs A under Section C.1.   He started by noting that there would be no shortage of litigations between B and C where the court will investigate matters and circumstances leading to the execution of the Impugned Documents[5].  After considering the submissions of counsel for C, the Judge took the view that he should give proper weight to the views and wishes of Mrs A before she became mentally incapacitated insofar as they could be ascertained. 

19.  The Judge also explained the reasons for attaching such weight to the views of Mrs A in his discussion of the legal approach by reference to some authorities, in particular he said at [132], [135], [140], [144] and [152] (which we need to examine in light of the principal ground advanced by Mr Ho SC, appearing for C together with Mr Dawes SC and Mr Man, that the Judge erred in the exercise of the discretion):

“ 132. The recognition of the need to consider a person's best interests from his point of view and the right to autonomy and self-determination is in line with the development of human rights jurisprudence in mental health contexts in some jurisdictions.

…

135. Apart from the human rights perspective, there is also judicial support for the proposition that, when the court is asked to determine issues relating to the best interests of a MIP, the court has to pay due regard to his views and wishes. Unless they are plainly contrary to the well-being of the MIP, the court cannot substitute its own view for that of the MIP as to what is in his best interests.

…

140. Although some of the authorities mentioned above are related to the choice of medical treatments and the making of statutory wills, I cannot see why the same principles should not be applied in the present context.

…

144. As explained earlier, the policy objectives behind the EPOA regime are to give deference to the wishes of the donor and to avoid the need for committeeship. It would be running contrary to these objectives, as well as contrary to the donor's rights under art.14 of s.8 of the HKBORO, if a committee is to be appointed at the instigation of the applicant in mental health proceedings, without any positive finding by the court that a case of abuse has been made out against the existing attorney. Likewise, the said policy objectives, and a donor's art.14 rights, would be eroded if the court were to appoint a committee for the very purpose of investigating matters involving her chosen attorney, when this should properly be the function of the court itself. This would also allow an applicant in mental health proceedings to bypass the statutory mechanisms for revocation of an EPOA.

…

152. One must also bear in mind that the statutory requirements for the execution of an EPOA are different from those of other documents such as a will or a GPOA.  It requires the attestation and certification of a solicitor and a registered medical practitioner.  These measures are taken to ensure that an EPOA is executed by the donor with full mental capacity, and the view expressed by the donor is genuine so far as the appointment of the attorney is concerned.  Under such circumstances, unless the EPOA is revoked, the court cannot ignore the prima facie views and wishes expressed by the donor in an EPOA.  Without a positive finding about the propriety of the EPOA, the court should be cautious in deciding whether to intervene in the interests of the MIP.”

20.  Based on the evidence before him, the Judge regarded the minor strokes in 2010 as a dividing line.  At [147], he had this to say:

“ The evidence at this stage is not conclusive either way. Mrs A might be in a more vulnerable position after she suffered the minor strokes in 2010. There is also no serious dispute that C was not able to see Mrs A after October 2010. Despite these facts, there is no evidence to suggest that Mrs A had suffered any mental incapacity before that time. Neither is there any evidence to show that she was subjected to any "isolation" before 2010. On the contrary, Mrs A had consistently expressed her views, rightly or wrongly, that she did trust B and it was C who abused her position in the family and mistreated B and her. The court cannot ignore such views and values held by Mrs A before she became mentally incapacitated.”

21.  The Judge found on the available evidence that prior to 2010 Mrs A already harboured feelings against C which were expressed by her in strong languages and the court should pay regard to her views, see [148] to [151].

22.  In Section C.1.4, the Judge assessed the implications arising from B’s concealment and the other matters relied upon by Mr Ho to challenge the weight to be attached to the Impugned Documents.  His assessment was set out at [156] to [158]:

“ 156. In my judgment, whether B was mala fide in concealing the Impugned Documents is a matter that has to be fully investigated on some other occasion. For the present purpose, even assuming that B was mala fide in "concealing" the EPOAs and the Impugned Documents, that should not affect the weight of the views and values held by Mrs A before she suffered the strokes in 2010.

157. The same observation can be made about the other complaints, including, inter alia, the advice given by DW to B that the Deed of Gift did not include Mrs A's claim in the HC Action. They relate to much more recent events and they need to be properly investigated in the future.

158.  For the above reasons, without specific findings of fact relating to the propriety of the EPOAs, there is insufficient reason for the Mental Health Court, in the interest or for the requirement of Mrs A, to intervene now in appointing a Part II committee to investigate the propriety of the Impugned Documents.”

23.  The Judge then alluded to other discretionary considerations: under section C.2 multiplicity of proceedings; under section C.3 who should be in the driving seats; under section C.4 collateral use of documents; and under section C.5 practical problems.

24.  It is noteworthy that the Judge analysed the utility and purpose of an appointment of committee in the present context in these parts of the judgment:

“ 166. Even if I am wrong in the aforesaid analysis and there is a genuine cause for investigation, I have grave reservation as to whether it is in the interest of Mrs A to put her, through the Proposed Committee, in the driving seat for the investigation and the prosecution of the possible claims.

167. Looking at the history of this case, it is clear that B and C are the key players in all the disputes within the family. This is obvious because they are the ones who would benefit from the estates of their parents. It is also certain that there will be no shortage of litigations between them in the future, in particular after the death of Mrs A.

168. According to Mr Ho, it would be in the interest of Mrs A for her to be remembered as doing the right things. However, with B and C in the driving seats for the litigations, the circumstances leading to the execution of the Impugned Documents will be fully investigated in the future. The truth will certainly be revealed. In such case, why should the Mental Health Court put Mrs A, through the Proposed Committee, in the driving seat to resolve all the disputes now?

169.  The immediate interests of Mrs A have been well taken care of, and I have no doubt that Mrs A will continue to receive the highest level of medical care.  Even taking into account the interest of Mrs A of being remembered as doing the right things, I do not see any reason or necessity as to why a Part II committee has to be appointed now to investigate something which will certainly be litigated in the future.”

25.  The Judge was also concerned that Part II proceedings should focus on the requirements of the mentally incapacitated person and they should not be allowed to provide a platform for the advancement and litigation of personal and/or forensic interests of the relatives.  Thus he said as follows:

“ 172. One must also not forget that C has an existing right to challenge the EPOAs. C is an interested party so far as the EPOAs are concerned. By challenging the EPOAs, the court would obviously examine the mental condition of Mrs A in around 2011 and 2012 and whether she was subjected to any undue influence at that time. If necessary, C can apply for discovery of the personal documents of Mrs A. I assume there will also be an independent person appointed to act on behalf of Mrs A who would certainly review all her personal documents and conduct the proceedings in Mrs A's best interests.

173. On C's own case, the present case bears all the hallmarks of a classic case of undue influence. Even without access to the full medical records of Mrs A and the privileged communications, there is nothing to prevent C from making the application to set aside the EPOAs. If C does not take the initiative to do so, there is very little justification for the Mental Health Court to act now in appointing a Part II committee which, without proper findings of fact, may or may not go against the wishes of Mrs A as expressed in the EPOAs.

…

176. The possibility of collateral use of documents is another concern. As the Proposed Committee will be acting for the interest of Mrs A only and there may be conflicts of interests between Mrs A and the two sisters, B and C should not be allowed to have access to the documents obtained by the Proposed Committee in the course of its investigation. Even assuming that the documents may be relevant in later litigations, I take the view that, after the death of Mrs A, C cannot apply for discovery of these documents against the Proposed Committee. This is to prevent parties from making use of the present mental health proceedings, which should only concern the interests and requirements of Mrs A, to advance their own personal interests in later litigations.

…

181. Second, although cost is not a serious concern taking into account the potential size of Mrs A's estate, it would still require Mrs A's estate to incur substantial costs in carrying out the investigation works, seeking legal opinion from senior lawyers and directions from the Mental Health Court.  Apart from the costs of the investigation, the Mental Health Court also has to devote precious judicial resources to supervise the operation of the Proposed Committee.  As the Mental Health Court is serving as a court of protection for the weak and vulnerable patients, the use of judicial resources is always the least relevant consideration.  However, as the two sisters will jealously protect their own interests in future litigations, I have grave reservations as to whether this Court should allow further duplication of efforts in the investigation about the propriety of the Impugned Documents, in particular that C has not taken up the initiative of challenging the EPOAs herself.”

26.  It is quite plain from a fair reading of the judgment as a whole that the Judge exercised his discretion based on the facts and circumstances of the present case instead of wrongly placing presumptive weight on the Impugned Documents.

The principal grounds of appeal: best interests vs substituted judgment

27.  The principal grounds of appeal are Grounds 1 and 2 which Mr Ho developed with his usual eloquence in his oral submissions before us.

28.  Mr Ho submitted that the Judge wrongly applied a “plainly contrary test” (taken from [135] of the judgment).  In so doing, counsel said the Judge effectively gave presumptive weight to the past wishes and views of Mrs A.  He further submitted that as Hong Kong has not undergone the change in law brought about in England under the Mental Capacity Act 2005, we should continue to apply the “best interests” standard as opposed to the “substituted judgment” standard.  Counsel referred to the judgment of Lewison J in Re P (Statutory Will) [2010] Ch 33 at [12] to [24] concerning the difference between the two standards.  Mr Ho submitted that the Judge in the present case had wrongly extended the substituted judgment standard to cases beyond the context of a statutory will application and cited post-2005 authorities in England based on the 2005 Act[6].  

29.  Mr Ho further submitted that there were ample materials showing a proper case for investigating the 2008 Will and the Judge failed to pay sufficient regard to such materials.  If there is a real risk that Mrs A’s wishes as expressed before October 2010 might have been overborne by undue influence or occasioned by misleading conduct and misrepresentations by B, such wishes should be accorded no or very little weight.  It was, counsel submitted, erroneous for the Judge to give effect to Mrs A’s prima facie views and wishes as expressed in the EPOAs[7].  He submitted that there would not be any bypassing of the statutory regime under the Enduring Powers of Attorney Ordinance Cap 501 as section 13(1)(d) of that ordinance expressly provided that on the appointment of a committee the court can give a direction revoking an enduring power of attorney. 

30.  Whilst counsel acknowledged that the court can take account of the views and wishes of Mrs A, such views and wishes must be balanced against the benefit and possible gains derived from the appointment of a committee.  He submitted that the “best interests” standard mandates the court drawing up a balance sheet, weighing the pros and cons of a particular course of action before deciding which course would best serve the requirements of the mentally incapacitated person[8].  

31.  On the facts of the present case, Mr Ho submitted that when there are materials supporting genuine concerns as to the circumstances leading to the execution of the Impugned Documents (which had the effect of Mrs A giving away a large part of her estate), the court in the exercise of the protective jurisdiction under Part II of the Mental Health Ordinance should appoint a committee to investigate in the absence of counterveiling factors contrary to the interest of Mrs A in the balance sheet. He submitted the prima facie views and wishes of Mrs A, in the present context, cannot be such counterveiling factors. 

32.  In connection with the best interests of the mentally incapacitated person, Mr Ho submitted that an item in the equation is that person being remembered in the future as having done the right thing.  In the present context, counsel translated that into the carrying out of investigation into the Impugned Documents to vindicate C if it was found out that she had been misunderstood by Mrs A in the past. 

33.  He further submitted that C’s case was that there had been a consistent course of conduct of undue influence by B over Mrs A and it was wrong for the Judge to regard 2010 as a watershed in terms of the weight to be attached to the views of Mrs A.

34.  With respect, we cannot accept the submissions of Mr Ho.  It is quite clear that the Judge applied the “best interests” approach.  At [127] of the judgment, he said:

“ 127. In considering whether to appoint a Part II committee to manage the affairs of a MIP, the paramount consideration must be the "best interests" and "requirements" of the MIP. In determining these matters, the court should give proper weight to the views and wishes of the MIP when they can be ascertained. In such context, the court would take into account the views and wishes of a MIP before he became mentally incapacitated.”

35.  Whilst he did allude to the views and wishes of Mrs A, the Judge plainly did not regard such views and wishes as conclusive in the way he would have if he were to apply the substituted judgment approach. As stated at [127], he only attached the weight to such views and wishes of Mrs A as he deemed appropriate in the context of this application. 

36.  As submitted by Mr Yu SC (appearing together with Mr Man SC, Ms Cheng and Mr Lee for B) and Mr Pao SC (appearing for the Official Solicitor), the Judge was entitled to do so, see Airedale NHS Trust v Bland [1993] AC 789, at p.872D.  In that case, Lord Goff said:

“ Of course, consistent with the best interests test, anything relevant to the application of the test may be taken into account; and if the personality of the patient is relevant to the application of the test (as may be in cases where the various relevant factors have to be weighed), it may be taken into account …” (our emphasis)

37.  It is also noteworthy that Lord Goff also alluded to the principle of self-determination which requires respect be given to the wishes of the patient at p.864C.  See also the discussion of the right of self-determination by Butler-Sloss LJ in the Court of Appeal at p.816 and the analysis of its implications in the application of the best interests approach at p.820G to 822H. 

38.  Subsequently, in Re A (Male Sterilisation) [2000] 1 FLR 549, Dame Elizabeth Butler-Sloss P emphasized at p.555F that in the application of the best interests approach, regard had to be paid to the fact that the patient is not a child and best interests encompasses emotional issues.  It is difficult to see how emotional issues could be properly considered without regard to the views and wishes of the person concerned.  Her Ladyship also foreshadowed at p.556D that implementation of the human rights regime in England under the European Convention on Human Rights would have impacts on the best interests test. 

39.  In Aintree University Hospitals NHS Trust v James [2014] AC 591 at p. 603A to B, Baroness Hale had this to say regarding the best interests test:

“ The advantage of a best interests test was that it focused on the patient as an individual, rather than the conduct of the doctors, and took all the circumstances, both medical and non-medical, into account [citing paras 3.26 and 3.27 of Mental Incapacity (1995) (Law Com No 231)]. But the best interests test should contain ‘a strong element of ‘substituted judgment’’ [citing para 3.25], taking into account both the past and present wishes and feelings of the patient as an individual, and also the factors which he would consider if able to do so [After citing para 3.28, Her Ladyship then alluded to some provisions in the 2005 Act]. This is, as the Explanatory Notes to the Bill made clear, still a ‘best interests’ rather than a ‘substituted judgment’ test, but one which accepts that the preferences of the person concerned are an important component in deciding where his best interests lie. To take a simple example, it cannot be in the best interests to give the patient food which he does not like when other equally nutritious food is available.”

40.  At [136] of the judgment below, the Judge also cited from [45] of the judgment in Aintree University Hospitals.  At [137], the Judge cited from the judgment in Re Jones [2014] EWCOP 59. 

41.  Aintree University Hospitals was undoubtedly a judgment given under the 2005 Act which contained express provisions for a best interests test.  The same is true in respect of Re Jones [2014] EWCOP 59, another decision under that Act.  

42.  However, as submitted by Mr Pao, though there is no equivalent provision under our Mental Health Ordinance, it does not follow that the citations from these judgments by the Judge in terms of the rationale and the need to take account of the MIP’s wishes and feelings are irrelevant in the Hong Kong context. 

43.  As we have seen, even before the 2005 Act, there were English authorities on the best interests approach which highlighted the need to give due weight to the views and feelings of the MIP on account of the principle of self-determination.  The previous view that the best interests test was solely driven by objective medical considerations had been disavowed in Airedale NHS Trust v Bland, supra.

44.  Art 14 of the Hong Kong Bill of Rights Ordinance, Cap. 383 provides protection against unlawful interference with a person’s privacy.  Moreover, Art 105 of the Basic Law protects the right of a person in the use and disposal of his property.  It was held by the Court of Final Appeal in Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372 that any legal measures which interfere with such right have to satisfy the proportionality test. 

45.  These human rights underpinnings for the principle of self-determination with regard to a person’s estate and affairs must inform the courts in Hong Kong in the interpretation as well as the application of section 10A(2) of the Mental Health Ordinance Cap 136 when considering how the power under Part II should be exercised in light of the requirements of the MIP.  In our judgment, in order to be Art 14 and Art 105 compliant and proportionate, due weight has to be attached to the wishes and feelings of a MIP in the application of the best interests test.     

46.  Hence, we are of the view that [132] of the judgment is correct in law.

47.  Subject to our comment below on [135] of the judgment, we have no difficulty with the Judge’s reference to the views and feelings of Mrs A in the present case.

48.  In the context of the present appeal, the specified purpose for the appointment of committee as sought by C was to conduct investigations into the Impugned Documents, in particular the EPOAs. In the meantime, the Judge found Mrs A was well cared for by B as the attorney appointed under the EPOAs. 

49.  As the Judge said at [138] of the judgment:

“ … However, Munby J also recognised that the weight to be attached to the MIP's wishes and feelings will always be case-specific and fact-specific. They may carry preponderant weight in some cases but not the others. It also depends on the individual contexts and circumstances of each particular case. The court must have regard to: (a) the degree of incapacity; (b) the strength and consistency of the views expressed; (c) possible impact on MIP's knowledge that her wishes and feelings are not being given effect to; (d) the extent to which the MIP's wishes and feelings are, or are not rational, sensible, responsible and pragmatically capable of sensible implementation in the particular circumstances; and (e) crucially, the extent to which the MIP's wishes and feelings, if given effect to, can properly be accommodated within the court's overall assessment of what is fair in his best interests.”

50.  This paragraph clearly demonstrates that the Judge did not attach conclusive or otherwise undue weight on the views and feelings of Mrs A.  He correctly identified that those views and feelings could only be a component in the overall assessment of best interests. 

51.  It is equally clear to us that the Judge was conscious of the very specific purpose for which C applied for the appointment of committee and it was in such context that he decided that great weight should be given to Mrs A’s views and feelings.  In other words, the Judge was not dealing with an ordinary application for appointment of committee where no EPOA has been executed and there is a pressing need to have a committee in place to take general care of the property and affairs of a MIP.  Hence, it would be wrong to read the judgment below (and this judgment) as supporting a proposition that once a MIP had previously indicated that he or she would not wish to have a committee, the court should not do so without regard to other relevant factors.  Much depends on the facts and circumstances of each case.

52.  On the facts of the present case, we do not see any error of law on the part of the Judge in terms of the weight he gave to the views and wishes of Mrs A in the context of an application for the appointment of a committee to look into the EPOAs which were executed by her to make provisions in case she lost her mental capacity.  In this context, we do not think the Judge erred in referring to the policy behind the EPOA regime. Despite the efforts of Mr Ho, we are not persuaded that the Judge was plainly wrong in attaching such weight to the views and wishes of Mrs A as he did. 

53.  It is crystal clear from the judgment that the Judge also took account of other relevant matters which he discussed at [159] to [182] of the judgment.  He did not determine the matter solely by reference to the views and wishes of Mrs A.

54.  It is thus plain that the Judge did not apply the substituted judgment approach in the present case. 

55.  Although we agree that the exercise of discretion involves a balancing exercise, we do not accept that the Judge must account for his decision by drawing up a balance sheet.  As long as he had taken account of all the relevant matters and did not take account of irrelevant matters, the weight to be attached to each matter is primarily within the province of the Judge.  This Court will only intervene when the exercise of discretion is plainly wrong.

56.  Even putting aside the weight to be attached to the wishes and views of Mrs A, if one were to balance the gains (actual as well as potential) to be derived from the appointment of committee for the specified purposes advocated by C and the dis-benefits (actual as well as potential) of such appointment, it is plain to us that the Judge was correct in holding that the court should not make such appointment. 

57.  In this connection, we do not agree that the Judge failed to pay proper regard to the materials relied upon by C to demonstrate there exist genuine concerns over the Impugned Documents.  On the contrary, the Judge had analysed the evidence at some length before he came to his findings at [147] to [151].  We cannot see any basis for suggesting that the Judge had overlooked anything.  Nor do we accept that the Judge failed to consider the case of C on continuous undue influence.  He had adequately addressed the same at [147] to [150] which should be read together with [128] to [131].  In particular, he said at [128],

“ It is an undisputed fact that the relationship between Mrs A and C had deteriorated starting from 2003. There is also no serious evidence to suggest that Mrs A had suffered any mental incapacity, or was in a vulnerable position or under any undue influence prior to 2010.”

58.  Whilst the EPOAs were executed after 2010, the Judge was entitled to assess the potential strength of the case against these documents and the potential benefit to be derived from the proposed investigation by reference to earlier events.

59.  In light of the Judge’s finding in this respect, the other matters discussed at [159] to [182] are plainly of sufficient counterveiling weight to support the Judge’s decision.

60.  As regards Mr Ho’s attempt to challenge the Judge’s findings on the relationship between Mrs A and C prior to 2010, we cannot find anything which satisfy the plainly wrong test in the well-established appellate approach to this kind of challenge.   

61.  We accept that the proposition in the last sentence of [135] of the judgment is too wide.  But reading the judgment as a whole and in context, as explained above, it is very clear to us that the Judge did not apply a “plainly contrary test” in deciding the present case.  

62.  We reject Grounds 1 and 2 in C’s grounds of appeal.

No irrelevant considerations

63.  In the written submissions, Mr Ho submitted that the Judge had erred in taking account of the developments in the High Court Action between Mrs A (represented by her next friend) and C. 

64.  With respect, we are not impressed by this submission.  The Judge was entitled to take account of those developments to assess the utility of the proposed appointment of committee and its potential impact on the progress of the High Court Action.  Further, as the Judge said at [163], the court should not allow Part II proceedings and the appointment of a committee to serve as a forum or platform for a litigant to obtain ammunition for the purpose of other proceedings. 

65.  Any mis-use of Part II proceedings is an abuse of process which the court should jealously guard against.  Part II proceedings, if allowed to be misused, would certainly be against the interest of the MIP as it would inevitably increase the strife and ill-feelings amongst those close to him or her and unnecessarily and unhelpfully divert their energy and resources from the proper care and attention for the MIP. 

66.  In the present context, the history in the High Court Action alluded to by the Judge did give rise to justifiable concerns as expressed in the judgment.  There is nothing wrong for the Judge to take such matters into account.  

67.  We also find it preposterous for C to make an indirect attempt in this appeal to challenge the independence of Mr Leung in acting as the next friend for Mrs A when she could have but did not mount such challenge in the context of the High Court Action.

68.  In the written submissions, Mr Ho also submitted that the Judge side-stepped the issue of whether the Gift Documents ought to be investigated now.  He said Mrs A has an interest in (i) the prompt vindication of her rights against possible wrongdoers; (ii) being remembered as having done the right thing; and (iii) the prompt recovery of any misappropriated assets.

69.  Counsel further submitted that the Judge overlooked the fact that the committee could have access to the privileged communications regarding earlier documents which would not be accessible to C even if she were to mount a challenge to the EPOAs. 

70.  We cannot accept these submissions.  The Judge did not side-step the issue; he decided that it was not in Mrs A’s best interests to appoint a committee to investigate in light of all the relevant circumstances.  Given the Judge’s assessment of the evidence (see [128], which we did not find any basis to disturb), there is no merit in Mr Ho’s contentions that the proposed investigation would usefully vindicate C or that the appointment of a committee would contribute to Mrs A’s interest in being remembered as doing the right thing. 

71.  Mr Ho also advanced submissions regarding [176] to [182] of the judgment.  Those relate to rather peripheral issues which would not have affected the outcome of this appeal.  Suffice to say that after considering the submissions of all the parties, we do not find any issues in those parts of the judgment that warrant this Court disturbing the exercise of discretion by the Judge.

72.  On the whole, we do not find any merit in the appeal by C. 

73.  In the circumstances, we do not find it necessary to address B’s Respondent’s Notice.

Disposition

74.  The appeal is dismissed.  We also make a costs order nisi that, subject to what we shall say regarding costs of the summons seeking recusal, C shall pay the costs of B and the Official Solicitor in this appeal, with a certificate for three counsel in respect of B, to be taxed if not agreed.

75.  As regards the costs of the summons of 24 January 2019 (seeking recusal) and the summons of 8 February 2019 (seeking the recusal application be heard in chambers), B shall pay the costs of C, with a certificate for three counsel, and the Official Solicitor, to be taxed if not agreed.