P v. D1 AND ANOTHER

DCCJ 811/2020

[2025] HKDC 744

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 811 OF 2020

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DECISION

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1.  This is day 6 of a bizarre civil trial scheduled to last for 7 days. In gist, P, aged 72, is suing D1, aged 74, in relation to the ownership of a residential apartment in Hong Kong. As of today, P and D1 are still legally married to each other and, despite this acrimonious litigation, they have no plan to divorce each other.

2.  During day 4 of the trial, D1 started giving live oral evidence before me and his last answer under oath shocked everyone.  D1’s counsel, Mr Lawrence Cheung, became so concerned about that answer he stood up and made an oral application for adjournment so that he could make urgent arrangements for D1 to be “medically examined”.  P’s counsel, Mr Dicky Cheung, after taking instructions, confirmed P would consent to that course of action.  I say at once both counsel acted sensibly in relation to this.  With short oral reasons I granted the adjournment sought.

3.  The parties came back on day 5 of the trial explaining various things to me, making submissions.  I made an anonymity order and directed Dr Gabriel Hung, a psychiatrist on the List of Approved Doctors under the Mental Health Ordinance (Cap 136) to give sworn oral evidence before me today.  He did.  I say at once Dr Hung’s expert opinion evidence was crystal clear, exceedingly helpful and unchallenged.  I am satisfied on the evidence that irrespective of whether D1 did or did not have mental capacity prior to day 4 of the trial, he is at present a mentally incapacitated person (“MIP”) and cannot defend this action without a next friend or guardian ad litem.  I am also satisfied D2 has a conflict of interest vis-à-vis D1 and should never be appointed as D1’s guardian ad litem.

4.  In particular Dr Hung was actually sitting in the public gallery in Court during day 4 of the trial and had a full opportunity to observe D1’s live oral evidence.  In Dr Hung’s opinion, D1’s live oral evidence showed “confabulation”, i.e., a medical phenomenon where a person’s brain, being unable to retrieve certain pieces of factual information, filling in the blanks with fabricated information, persuading itself the information was actually true. In a typical “confabulation” situation the brain actually believes the fabricated information to be true so that the person would answer questions with such confidence one can be easily misled unless the information could be fact-checked by reference to objective facts.  In our present case, when D1 gave live oral evidence during day 4 of the trial, D1 confidently asserted the residential apartment being litigated about had been “sold” to strangers via estate agents, giving false factual details as to how that supposedly took place, when we know from the objective land registry records that the story was fabricated.  I had the opportunity to observe D1’s demeanour when he gave that false evidence.  I do accept Dr Hung’s expert opinion that D1 was clearly just “confabulating” – the falsity of the evidence was due to mental incapacity instead of conscious dishonesty.  In my view, D1 is a person in urgent need of competent psychiatric medical care, and not a criminal who should be sent to prison for perjury.  In fact, I would go as far as to say the two children of the marriage in question who were practising accountants by profession should seriously consider making a formal application under Part II of the Mental Health Ordinance (Cap 136) to protect D1 from harm, but that is not something for me to decide.  What I need to decide right now is whether I should appoint the Official Solicitor to act for D1 in this legal action.

5.  HKCP 2025 accurately summarized the law in relation to this at its §80/3/4 as follows: -

“If the court has found a person to be a ‘mentally incapacitated person’ it has power to authorise someone, e.g. the Official Solicitor (see s.4 and Sched. 1 of the Official Solicitor Ordinance (Cap 416), to conduct proceedings on behalf of the mentally incapacitated person. If, therefore, there are existing proceedings in the court, application should be made to that court for the necessary authority (Re S. (F.G.) (Mental Health Patient) [1973] 1 WLR 178; [1973] 1 All ER 273, Court of Protection). See also the useful discussion on the role of the Official Solicitor, and on his costs, in Director of Social Welfare v LNT [2021] 2 HKLRD 579…”

6.  I should add that the appointment of the Official Solicitor in a scenario such as the present one is aimed at protecting a litigant from other litigants in the same case and as such, while all other parties should still be heard, a judicial officer must act independently and make up his own mind as to whether it would be prudent to make the appointment, bearing in mind the other parties may well have improper motives.

7.  Further, as had been comprehensively and correctly explained in HKCP 2025 (§80/1/1), Ng Hong Ki v Leung Fong Kiu [2012] 1 HKLRD 435(Tang V-P, Kwan and Fok JJA), and Ever-Long Finance Ltd v Yeung Wah Lung [2017] 1 HKLRD 500 (DDJ Simon Ho), the legal test is focused on a person’s mental capacity to handle a specific piece of litigation, and a person’s general ability to have a social conversation is irrelevant.

8.  In our present case, I am satisfied D1 definitely does not have the mental capacity to understand the nature of this specific litigation, or to give instructions to his own lawyers.  I am slightly surprised D1’s existing legal team does not seem to have spotted this issue at any point prior to day 4 of the trial, but I would refrain from speculating why.  In particular, as I have said above, a litigant who “confabulates” may appear confident and convincing so that a lawyer with limited experience may well be tricked by his own client.  At this stage I am wholly unable to conclude whether D1’s existing legal team was at fault or not, so I say nothing more on that issue.  I am of course fully aware there is a potential argument that D1’s solicitors should be asked to pay costs, but this is not the occasion to rule on the issue or indeed to comment on the same.  It would be unfair.  If any person were to make an application for costs in the future, this Court will deal with the application then.

9.  I have also carefully considered the observations of Bebe Chu J in Director of Social Welfare v LNT [2021] 2 HKLRD 579 [2021] HKCFI 587.  Whilst the facts of this case are obviously different from the facts of that case, I am satisfied this case is a suitable case for the Official Solicitor to be appointed as the guardian ad litem for D1, and I so order.

10.  For the avoidance of doubt, I declare that on my appointment of the Official Solicitor as the guardian ad litem for D1, which takes effect immediately, Yu Hung & Co ceases to be the solicitors for D1, and service of documents on D1 should from this very moment onwards be effected on the Official Solicitor, instead of on Yu Hung & Co.

11.  I have considered the proposed directions helpfully lodged by P’s counsel, Mr Dicky Cheung, and the oral discussions on the same earlier today.  All things considered, I hereby make the following order: -

(1)  The remaining trial date of 30 April 2025 be vacated.

(2)  The trial be adjourned part-heard to a directions hearing before DDJ Kenneth KY Lam at 2:30 p.m. on 4 August 2025 with 2 hours reserved (“Directions Hearing”).

(3)  The Official Solicitor be appointed guardian ad litem of D1 with immediate effect.

(4)  It is declared Yu Hung & Co ceases to be the solicitors for D1 with immediate effect.

(5)  The Official Solicitor be free to take such steps as he in his judgment sees fit to protect or further D1’s interests notwithstanding the terms of my anonymity order dated 28 April 2025.

(6)  P’s solicitors must serve copies of (a) this Decision; (b) the full set of updated trial bundles; and (c) the parties’ written opening submissions lodged before the start of the trial on the Official Solicitor by 4:00 p.m. on 9 May 2025, with costs reserved.

(7)  The audio recordings for all days of this trial up to and including today be released and provided to the Official Solicitor forthwith.

(8)  The official transcripts for all days of this trial up to and including today be released and provided to the Official Solicitor once available.

(9)  The Official Solicitor shall lodge and serve full written submissions, with proposals vis-à-vis the way forward, by 4:00 p.m. on 14 July 2025, with costs reserved, and solicitors for P and/or solicitors for D2 are at liberty to write to the Official Solicitor on the same.

(10)  P and D2 shall lodge and serve full written submissions, with proposals vis-à-vis the way forward, by 4:00 p.m. on 21 July 2025, with costs reserved.

(11)  Liberty to apply.

(12)  Costs reserved.

12.  I do thank all counsel for their most able assistance.