Mrs. A v. A

HCMP 2338/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2338 OF 2010

(ON AN INTENDED APPEAL FROM FCMC NO. 15415 OF 2009)

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REASONS FOR JUDGMENT

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Hon Tang Ag CJHC (giving the reasons for judgment of the Court):

1.  The petitioner is the wife. She is 86 years old and recently has had a minor stroke. She is still in hospital.

2.  The respondent is 87 years old and was diagnosed to be suffering from Alzheimer's disease in 1995.  He was pronounced to be a mentally incapacitated person by Lam J on 21 November 2008.  A committee has been appointed in respect of his estate (“the Committee”), under section 11 of the Mental Health Ordinance, Cap. 136. 

3.  The petition was filed on 9 December 2009, and the hearing of the petition is scheduled to commence on 23 November 2010 with 12 days reserved.  The petition is based on the unreasonable behavior of the respondent from about 2004/2005 such that the petitioner cannot reasonably be expected to live with the respondent. 

4.  On 2 October 2010, a supplemental petition was filed.  In the supplemental petition, it was alleged that the respondent had behaved improperly with maids and nurses which is said to have brought back memories of the respondent’s previous infidelities.  The response to the respondent’s request for particulars dated 8 November 2010 concluded with this paragraph:

“Our client feels ashamed and angry after knowing about Mr. A’s having groped her great granddaughters who are only 8 and 5 years old, and finds such behavior of Mr. A intolerable and extremely shameful. We may file further pleadings on it.”

5.  By summons dated 9 November 2010, the petitioner asked for leave to file and serve a further supplemental petition as per a draft Further Supplemental Petition attached to the summons.

6.  The supplemental petition alleged that since about the summer, the respondent had on several occasions:

「1. …數次對小女孩Y及Z（均少於九歲）毛手毛腳，觸及和／或撫摸她們的私人部位，令她們受驚。最近的一次是約於今年10月31日，答辯人對Y女孩（二人中較年輕者）作出以上行為。

 2. 呈請人得悉後，感到極度憤怒，嘔心，羞愧及難過。」

7.  The alleged event of 31 (or 30) October 2010 took place in a car in which the husband was travelling to a Halloween party with his two great granddaughters.  Also, in the car, amongst other people, was his daughter, the grandmother of his great granddaughter.  Despite what had allegedly happened during the journey to the party, the seating arrangement on the trip home was the same as on the trip out. 

8.  As Mr Yu has rightly accepted the alleged unreasonable behavior pleaded in the petition is attributable to his mental condition.  Of course, that does not mean that such conduct could not in law amount to unreasonable behavior such that the petitioner could not reasonably be expected to live with him. Whether that is so or not remains to be decided.  Mr Yu also rightly accepts that the husband’s alleged conduct towards the nurses and other staff as well as his great granddaughters are also attributable to his mental condition. 

9.  The application for leave to file and serve a Further Supplemental Petition was refused by Judge Wong on 10 November 2010, who had also refused leave to appeal.  The learned judge dealt with the application for leave on the basis that the petitioner did not wish the hearing of the petition to be adjourned.

10.  On 11 November 2010, Messrs Wong, Hui & Co., solicitors for the petitioner, wrote to the Registrar of Civil Appeals, asking for an urgent hearing before a single Justice of Appeal to hear the petitioner’s application for leave to appeal to the Court of Appeal pursuant to O. 59 r. 2A(5)(b).  The summons for leave was filed on the same day.  The parties were informed that the application would be heard before two judges and that if leave to appeal were granted, the court would hear the appeal immediately thereafter.  On 12 November 2010, we heard the parties both on leave as well as on the appeal itself, and came to the conclusion that leave should be given but the appeal should be dismissed.

11.  At the hearing, Mr Benjamin Yu, SC and Ms Anita Yip, appeared for the petitioner, Mr Johnny Mok, SC and Mr Jeremy S K Chan, appeared for the Committee.

12.  Mr Yu submitted that the learned judge dismissed the petitioner’s summons because he took the view that there would not be sufficient time before the trial for the respondent to deal with the new allegation. 

13.  The parties have supplied us with copies of their notes of the hearing before the learned judge.  The notes of the judgment provided by Ms Barbara Hung, solicitors for the respondent, recorded:

“J The Summons is dismissed. My view is that there may not be sufficient time for the Respondent to go back to Lam J for directions and for them to interview witnesses and prepare the evidence and therefore the summons be dismissed. And I think there is already, Mrs A has already put the UB grounds in the petition and I fail to see why they … Mrs A has to add another ground to it. Since you agree that this is a very serious allegation I think proper time should be given to the other side to interview witnesses and to create a meaningful report to Lam J for directions. For these reasons I dismiss the summons.”

14.  Mr Yu’s principal complaint is that Mr Jeremy Chan, who alone had appeared below on behalf of the respondent, had not told the court that the Committee had actually interviewed a principal witness (a nurse) relating to the allegations of the husband’s conduct towards his great grandchildren.  We have read the relevant transcript.  It is unfortunate that Mr Jeremy Chan had not informed the court that the Committee had had an opportunity to interview the nurse. The learned judge should have been so informed.  However, we do not agree with Mr Yu that Mr Chan had deliberately misled the court. 

15.  The learned Family Court Judge gave his reasons after a hotly contested hearing.  Although he did mention at the beginning of his reasons that the respondent might experience difficulty getting the requisite direction from Lam J, we do not believe that was the principal reason why he refused leave. 

16.  It is clear from Ms Barbara Hung’s affirmation filed on 12 November 2010 that much work would have to be done if leave were granted so that the respondent could properly deal with the allegations in the further supplemental petition.  She has also informed the court that on 11 November 2010, they had written to Lam J and obtained Lam J’s sanction to file an answer in the event leave being given for the filing of the further supplemental petition.  The directions given by Lam J included the authority

“… to make an application to adjourn the trial (scheduled to commence on 23 November 2010) if leave is granted to Mrs A to file a further supplemental petition.”

17.  I agree with Mr Yu that it was not the fault of the petitioner that the application for leave was made so late: the latest incident only took place on 31 (or 30) October 2010 and she was not aware of the earlier incidents.  Mr Yu submits that if leave is refused, and her present petition fails, the petitioner would have to issue a new petition based on the new allegations. Whether that would come to pass remains to be seen.  It seems to us that since the alleged unreasonable behavior of the husband is attributable to his mental condition, the real issue at trial is likely to be the impact of such behavior on the petitioner.  So the proposed amendment probably adds little to the petitioner’s case.  There is no basis for us to interfere with the learned judge’s exercise of discretion.  That is why although we granted leave to appeal, we have dismissed the appeal.