HUI SUM AND ANOTHER v. HUI TING NUNG

HCA289/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 289OF 2010

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REASONS FOR DECISION

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Introduction

1.  The Defendant (“D”) issued a summons for striking out all parts of the statement of claim relating to the 1^st Plaintiff, D’s father (“Father”), under Order 18 rule 19 of the Rules of the High Court (“RHC”) and/or inherent jurisdiction.  The 2^nd Plaintiff is D’s mother (“Mother”).

2.  The writ with the statement of claim was filed on 1 March 2010 (“Claim Date”). The first and primary ground of D’s application is that Father was mentally incapable of suing in his name on Claim Date.  His alternative ground is that even if Father was mentally capable of suing on Claim Date, he was forced or manipulated by Mother and/or D’s siblings in doing so against his true wish, and this amounts to at least an abuse of court process if not also maintenance or champerty on the part of Mother and D’s siblings.

3.  After the issue of D’s summons, on the application of the Mother, an order was made on 30 March 2011 appointing the Mother to act as Father’s next friend and that the Father’s claim be continued by the Mother on behalf of the Father (“Appointment Order”).

4.  On 10 May 2013, I have orally dismissed D’s summons, and the reasons are set out hereinafter.

Brief Background

5.  The family dispute arose out of a property in Ma Tau Wai Road in Kowloon (“Property”), which was assigned to D by his cousin in May 1989 for a consideration of HK$500,000.  D was about 23 years old at the time.

6.  Since the above assignment, Father, Mother and D have been residing under the same roof in the Property, where they continue to reside.

7.  Prior to moving to the Property, D was living with his parents in premises in the Kowloon Walled City registered in the sole name of the Father.  D has said that the consideration of HK$500,000 for the Property came partly from the compensation money received by Father as a result of resumption of their previous home by the Government, and partly from Father’s savings.

8.  It is the case of the Father and the Mother that D holds the Property in trust for them, whereas D’s case is that the Property was a gift to him from the Father.

Father’s Mental Capacity

9.  There is no direct evidence as to D’s mental capacity at the Claim Date. Mother had produced a bundle of medical reports on D’s mental capacity, and relied on two doctors, a Dr Tam and a Dr Wong, as her experts. D, on the other hand, had instructed a Dr Ho to prepare an expert opinion, based on all the medical reports produced by the Mother.

10.  Father is now about 88 years old. There was no dispute between the parties that he suffered a stroke about 6 years ago in October 2007, and the chronology which appeared from the medical reports was as follows:

30.10.07	Father transferred to Kowloon Hospital from Queen Elizabeth Hospital where he was first admitted after a stroke
05.11.07	Father underwent a Mini Mental State Examination (“MMSE test”) MMSE Result: 5 out of 30
21.11.07	Father discharged, at time of discharge –Mental state: confused
22.11.07	Father underwent AMT test at Convalescent Department of Kowloon Hospital Test Result: Alert
15.01.08	Case Close Date
17.10.08	First Home Visit by Hospital – Mental state: Orientated
01.06.09	Case Close Date

11.  Although the Father’s MMSE result in early November 2007 was 5 out of a maximum of 30, it seems from the above that thereafter there was improvement and by October 2008, Father’s mental state was stated to be orientated and his case was closed by the Kowloon Hospital in June 2009.

12.  Three months thereafter, the Father was taken to see a private general practitioner, a Dr Lo, in September 2009.  According to Dr Lo, D’s elder brother who accompanied the Father on that visit informed the doctor of Father’s past history of heart diseases, stroke, dementia & hypertension. Father was then referred back to the Queen Elizabeth Hospital for follow-up. There was no test performed by Dr Lo or any diagnosis of Father’s mental state at that time.

13.  On 25 November 2009, Father was referred to a specialist in rheumatology, a Dr Lee, at the Union Hospital and the Father underwent a MMSE on that day.  The result was 11 out of 30 and Dr Lee’s then diagnosis was “dementia”[1].  The information received by Dr Lee from the son who accompanied the Father at that time was:

“Recently noted to have deterioration of memory

Not able to recognize his grand-children

Confused with his own daughters name

Forget that his visits by his children

No episode of forgetting turning off stove or water tap

(wearing label/card)

Sleep pattern okay

No sundowning feature”

14.  There was no stage of dementia stated under diagnosis, although Dr Lee noted that his clinical impression of the Father was he had moderate to severe dementia.  In a more detailed report prepared subsequently[2], Dr Lee stated that at the time of consultation, in the performance of his daily activities, the Father was able to go out for morning tea with his wife everyday and performing walking exercise in the garden.  Dr Lee noted that the Father was attending day care in Tung Wah Group day centre (with exercise) 3 times per week.  He was able to bathe himself and to dress himself (upper or lower garment).  He was noted to be alert conscious and was not depressed looking.

15.  Thereafter, the Father was taken for a general consultation by a Dr Leung at a Government clinic on 9 February 2010 regarding his heart disease, constipation and hearing problems.  All Dr Leung noted was “? Dementia/ET attended private 12/09”.  Again, this was not a diagnosis, and the doctor seemed to be noting down what was informed to him, and in fact , Dr Leung put a “?” before dementia.

16.  From the above, it can be seen that the last MMSE and only diagnosis of dementia of the Father, prior to the Claim Date, was on 25 November 2009. The MMSE result that day in fact showed a marked improvement from the Father’s MMSE result 2 years earlier in November 2007.

17.  D’s expert Dr Ho opined that the Father’s cognitive functioning has been unsatisfactory since July 2009, and that the MMSE result of 11 out of 30 conducted by Dr Lee on 25 November 2009 is compatible with the range for patients suffering from moderate to severe dementia.  This together with the Father’s condition as reported to Dr Lee on that day, according to Dr Ho, would suggest the Father’s cognitive function was already poor around March 2010.  Dr Ho is of the opinion that it is more probable that Father was by reasons of dementia to be not capable of managing and administering the present litigation at the material time (ie March 2010), and  that it was unlikely that Father was capable of “fully understanding the case as stated in the statement of claim or to manage and administer it at the material time in order to give reasonable instructions to lawyers and endorse the contents as stated in the statement of claim”[3] (emphasis added).  Dr Ho has never seen the Father, and his opinion is based on the medical reports produced by the Mother.

18.  The Father and the Mother mainly relied on Dr Tam’s reports.  Dr Tam saw Father the 1^st time only on 13 December 2010, and then saw him 3 times between 10-15 June 2011.  Dr Tam’s 1^st report was prepared for the Guardianship Board, and he stated therein that Father had mental disorder for 6 months[4].  6 months prior to December would be in June 2010.

19.  Dr Tam prepared two further reports for the purpose of this application.  He considered it a safe and reasonable medical opinion that the Father recovered fairly well from his stroke between 2007 and 2010[5]. He relied on the following:

(i)      In November 2008, the Father’s Higher Disability Allowance was suspended because his condition was ‘too good’, and he had not gone back on that allowance again. The medical assessment form for this allowance also stated that the Father was mentally fit to make a statement[6].

(ii)     As late as the latter part of 2009, Father was able to switch on the television at specific hours to watch the programme of his choice and also to change channels according to his wish. He could also instruct his wife to go to the bank regularly to check on his financial situations.

(iii)    In March 2010, Father was able to instruct his son to purchase tickets for him to go to Toi Shan to visit his relatives.

20.  (i) above was the only documentary evidence apart from all the medical reports.  (ii) and (iii) were  hearsay in that that was what was reported to Dr Tam by the Mother and family members.

21.  A “person under disability” under Order 80 r1 of RHC means a person who is a minor or a mentally incapacitated person, and a “mentally incapacitated person” means a mentally disordered person or a mentally handicapped person (within the meaning of the Mental Health Ordinance (Cap 136) who, by reason of mental disorder or mental handicap is incapable of managing and administering his property and affairs, or for all other purposes, a patient or a mentally handicapped person.

22.  Father was clearly diagnosed with dementia on 25 November 2009.  His score of 11 out of 30 was according to Dr Ho in the range compatible with moderate to severe dementia, and Dr Tam did not dispute this.  Both experts agreed that the Father had been suffering from vascular dementia, and that his condition would be progressively deteriorating, and by December 2010, Father was a mentally incapacitated person.

23.  By 15 December 2010, according to the other expert witness for the Father, Dr Wong, who saw the Father on that day, the Father performed poorly and scored only 5 out of 30 out of a MMSE test. According to Dr Wong, Father had been attending the Tung Wah Hospital Group Day Care Centre for the Elderly for dementia day care “for the past year” although his overall well-being was said to have improved since attending the day care centre.  Further according to Dr Wong’s report to the Guardianship Board, Father had the mental disorder for 7-8 months.  7-8 months earlier would be some time in April/May 2010.  In December 2010 Father was said by Dr Wong to be in a mid to late stage dementia.

24.  The issue is really whether at the Claim Date in March 2010, the Father was mentally capable of managing and administering his property and affairs.

25.  A person diagnosed with dementia does not necessarily mean he is a mentally incapacitated person.  Dr Ho accepted that the MMSE score could fluctuate depending on the person’s physical state at the time of the test or other situational factors, but he opined that 11 out of 30 was probably the highest score the Father achieved , which was in November 2009.

26.  D has relied on the following to allege Father’s lack of mental capacity at the Claim Date[7]:

(i)      All along he had been living with his parents and was in a position to observe the demeanour of Father and  his interaction with D raised suspicion as to Father’s mental capacity;

(ii)     D was able to observe Father’s demeanour during the mediation session on 25 October 2010.

(iii)    D made a recording of a telephone conversation between Mother and his eldest brother on 26 October 2010  (“Telephone Recording”) which revealed that Father was suffering from dementia and could not understand other people or think or talk sensibly;

27.  D’s defence to the statement of claim was filed in April 2010.  The mediation session and the Telephone Recording took place in October 2010.  It was not until 7 December 2010 that D’s solicitors first wrote to Father’s and Mother’s solicitors raising the issue on the Father’s mental incapacity[8] (“D’s Letter”).  According to D’s Letter, it was at around that time D received notice that Father was alleged by the Mother and his brother to be mentally ill to a degree that Father was unable to deal with matters in relation to the proceedings. 

28.  I find the present case a borderline one, and the difficulty lies in the lack of sufficient medical evidence as to the Father’s mental capacity at around the time of the Claim Date.

29.  It seems although D himself had all along been living with his parents under the same roof and had interaction with the Father, it was only after the mediation and after the Telephone Recording in October 2010 that he seemed to be more certain of his suspicion, although D said in his 1^st affirmation that he had raised his concerns at the early stage of these proceedings and had instructed his lawyers to issue the present application in November 2010.  D’s Letter was only sent in December 2010.  D’s position seems contradictory at times, as on one hand his case is that Father has been mentally incapacitated on and since the Claim Date, if not earlier, and but on the other hand, he seems also to be relying on the Telephone Recording and the Mother’s conversation with the Father as evidence that the Father agreed that the Property had been given to him[9].

30.  What the Mother said in her affirmation and what was reported to Dr Tam about the Father’s condition by the Mother and/or D’s brother and the fact that Father did not go back to the Higher Disability Allowance after November 2008 led Dr Tam to opine that more than certain the Father was in possession of his faculty to the stage that he was able to instruct his family to conduct legal proceedings on his behalf at Claim Date (emphasis added). There is no reason to doubt the Mother’s or Dr Tam’s evidence at this stage, without hearing oral evidence.  The Father’s claim is in fact a relatively simple one and does not involve complex issues.  The main issue is whether the Property was a gift to D or whether D has merely been a trustee for his parents.

31.  Having weighed the evidence available before me, I am unable to come to the view that as at Claim Date, the Father was already a mentally incapacitated person within the definition of the Mental Health Ordinance, and a person under disability under Order 80 r1 of RHC.  I, however, accept that his mental condition would have progressively deteriorated by October 2010 to the extent that he was not able to participate meaningfully during the mediation.

Whether the Father’s acts before the Appointment Order can be ratified even if he lacked the mental capacity to sue at Claim Date

32.  Even if the Father did lack the mental capacity to sue at Claim Date, it does not follow necessarily that his claim should be struck out now.

33.  So far as legal principles are concerned, it is not disputed that if a defendant desires to question the authority to sue in a plaintiff’s name, he must apply to strike out the plaintiff’s name at an early stage; he cannot by his defence dispute the authority, nor can he do so at the trial[10].  Further, if there is any real doubt about the authority to sue, the question must be resolved first, before the case should be allowed to proceed any further[11].

34.  It is clear from the above that an allegation that a party lacks authority to sue must be raised early and not at trial by way of defence.

35.  As mentioned earlier, after D issued his summons, the Mother then obtained the Appointment Order, but Mr Poon, D’s Counsel, argued that the Mother is only entitled to ratify solicitor’s authority back to the date of the Appointment Order, namely 30 March 2011, and not earlier.

36.  Mr Ko, Counsel for the Father and the Mother, has referred this court to the Court of Appeal decision in Ng Hong Ki and Leung Fong Kiu[12], which was on Mr Poon’s list of authorities on the issue that the test of mental incapacity is “issue specific”.

37.  In the case of Ng Hong Ki, it was held, among other things, that where steps in proceedings were taken before lack of capacity due to disability under O 80 of RHC was raised, the court was not powerless to act and did not have to direct the parties to start all over again[13].  Kwan JA said that under O2 r1(1) the failure to comply with O80 r2(1) would be treated as an irregularity and would not be nullified by reason of the non-compliance provided everyone had acted in good faith and there had been no manifest disadvantage to the person subsequently found to be under disability, the court had power to regularize the position retrospectively[14]

38.  Mr Poon has tried to distinguish Ng’s case from the present case in that (i) Mother and her family members deliberately concealed Father’s mental capacity, and even allow mediation to go ahead; and (ii) in Ng’s case, the defendant was alleging himself to be mentally incapacitated to set aside a judgment against him, and so he was trying to take advantage of his own omission or fault at the expense of the innocent opponent.

39.  I have said earlier that the first time D raised the issue of the Father’s mental capacity with his parent’s solicitors was in D’s Letter in December 2010.

40.  D’s Letter was met with a strong objection from solicitors for the Father and the Mother at the time.  Notwithstanding their strong objection, D’s Letter did prompt action on the part of the Mother.

41.  According to the Mother, she noticed the deterioration of the Father’s mental capacity in October 2010, but as she was not very well educated and did not know about legal procedure, it did not occur to her that she should tell her solicitors.  She said after the receipt of the D’s Letter, she realized she should apply to the Guardianship Board to take care of Father’s welfare, and she took steps to appoint herself as next friend for the Father to continue these proceedings[15].

42.  Subsequently, it turns out that the Mother’s application to the Guardianship Board was misconceived in that she was applying for the sole purpose for the Father to continue the present legal proceedings and she was subsequently explained by the Guardianship Board that this was out of the jurisdiction of the Guardianship Board.  This led to her making an application to the court for the Appointment Order.

43.  There is no sufficient evidence to doubt that the Mother only first noticed the deterioration of the Father’s mental capacity in October 2010. D has not denied that the Mother is uneducated and does not know the legal procedure.  Less than 4 months after D’s Letter, the Mother obtained the Appointment Order. There was no sufficient evidence to say that the Father or the Mother, or any one else had not acted in good faith.  D said that the Mother and “her family” had “deliberately concealed” Father’s mental capacity, and even “allowed mediation to go ahead”.  In fact, had the Mother and “her family” realized that the Father was not mentally capable in attending mediation, one would have thought they would NOT allow him to attend mediation, rather than the opposite.  Allowing the Father to attend mediation would only expose his mental capacity, and in my view, there was certainly no deliberate concealment.

44.  As eventually the Appointment Order was obtained, there was no manifest disadvantage to the Father, apart from some delay in the proceedings. 

45.  Having considered the above circumstances, I come to the view that the position should be regularized retrospectively, irrespective of whether or not D was mentally incapacitated or under disability at the Claim Date or thereafter until the Appointment Order.

Abuse of Court Process

46.  D’s alternative ground for his application is that even if Father was mentally capable of suing on Claim Date, he was forced or manipulated by Mother and/or D’s siblings in doing so against his true wish, and that this amounts to an abuse of court process if not also maintenance or champerty on the part of Mother and D’s siblings.  D mainly relied on the Telephone Recording in support of this ground.

47.  As I have said the Father’s mental capacity would have deteriorated to such an extent in October 2010 that he was not able to participate meaningfully in the mediation.  The Telephone Recording was the day after the mediation. Father’s mental disorder seemed to start in about April/May 2010.  There is no sufficient evidence as to the Father’s true wish in October 2010.  According to D’s expert, it would not have be ascertainable.

48.  In any event, I do not find there is sufficient evidence to say there has been abuse of process by the Father, or the Mother.

Conflict of Interest

49.  D has also alleged that there is a conflict of interest between the Father and the Mother, and the Mother should not be appointed the next friend of the Father.  As I understand it, D’s case seems to be that the consideration of the Property came solely from the Father, and if in future this Court should come to the view that D is only holding the beneficial interest in the Property as a trustee only, then he holds it solely for the benefit of the Father who paid for the consideration, and not the Mother.  Thus, there is a potential conflict between the Father and the Mother.

50.  The time to raise this issue should really be at the time of the Mother’s application for the Appointment Order.  D did not oppose Mother’s application at that time, although his solicitors wrote to say this was on an entirely without prejudice basis to D’s position taken in the striking out application[16].

51.  The marriage between the Father and the Mother was a long one, and the Mother said in her affirmation that the Property was purchased using the money of hers and the Father’s[17].  There is no sufficient evidence at this stage as to whether the source of money for the consideration of the Property came from the Father, the Mother, or jointly. The Mother has made an affirmation confirming that there is no conflict of interest between the Father and her.

52.  At this stage there is simply no sufficient evidence to support D’s claim that there is a conflict of interest between the Father and the Mother, and even if there were, any application to replace the Mother as the next friend should be a separate application.

Conclusion/Order

53.  For the above reasons, I have dismissed the Defendant’s application. 

54.  I have also made an order that costs of this application be to the Plaintiffs’, save for the issue of the Defendant’s summon.  This is because I am of the view that D was justified in issuing the summons.  For the avoidance of doubt, the issue of the summons includes the Defendant’s 1^st affirmation in support of his summons filed on the same date.  I have further ordered the costs be summarily assessed and the Plaintiffs are to file their statement of costs within 14 days, and the Defendant is to file his opposition within 7 days thereafter.