P v. Q

HCMH 134/2022

[2025] HKCFI 3080

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MENTAL HEALTH CASE NO 134 OF 2022

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D E C I S I O N

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1.  As to the identity of the committee, the court needs to take into account that the committee will be authorised to investigate the previous withdrawals from LSY’s account. The court takes note of the respondent’s submissions made based on Re A[1]. Because there is a need to investigate the state of the estate, it would be ideal to find an outside independent party, for example, an accountant, to be the committee.

2.  However, that matter must be balanced against the costs that will be incurred if such a person is being appointed.  The estate comprises cash of over $30 million, three Hong Kong properties and one Mainland China property.  The estate is not a small one.  However, the professional fees of a professional committee would be around thousands of dollars per hour. 

3.  From the court’s own experience, the estate would be very quickly depleted and, in some cases, burned on these investigation fees.  Hence, on balance, I would appoint the applicant to be the committee with the power to investigate. 

4.  In coming to this decision, I have also taken into account the fact that any such investigation would involve an examination of the bank accounts of LSY, compilation of records for rental proceeds and dividends from the two businesses in which LSY or the family members are not participating.  That process would not be a complicated process and it may be said that it would not necessarily involve a lot of judgment call because it would involve the compilation of accounting entries based on objective bank documents. 

5.  In any event, after the investigation is done, if the committee wishes to commence proceedings on behalf of LSY, it would still come to the court for sanction.  At that juncture, if the court feels that the matter needs to be looked into by an impartial third party, a professional may be engaged on an ad hoc and limited basis such that the costs of such a further investigation would be controlled. 

6.  So those are the reasons for me to appoint the applicant to be the committee member, even though it is contemplated that some investigation over the affairs of this case will be conducted. 

7.  As for costs, based on Dr A’s report and the medical notes of Dr B, I find that the respondent has since at least May 2020 known about the dementia situation of LSY.  As observed by the Official Solicitor, LSY’s condition must have been obvious to family members. 

8.  In light of the overwhelming medical evidence in support of the conclusion that LSY is an MIP, I consider that it is unreasonable for the respondent to have taken the stance and insisted that LSY is not an MIP. 

9.  In fact, the respondent took LSY to see Dr B for 10 times during the period from May 2020 to June 2021.  He must have known the opinion and diagnosis made by Dr B over the mental capacity of LSY. 

10.  For reasons only known to the respondent, he did not disclose such information or the medical records of Dr B until July 2024, when he filed the opposing affirmation in these proceedings.  All along, the respondent has been relying on Dr C’s report. 

11.  Again, as observed by the Official Solicitor, it is plain from the contents of Dr C’s report that that report is in fact, to a large extent, based on the information supplied by the respondent to the doctor.  Hence, the reliability of Dr C’s report is in doubt. 

12.  Because of the conduct of the respondent, more costs have been incurred in these proceedings on the issue of the mental capacity of LSY.  The matter has dragged on until now.  The matter could have been concluded in early 2023.  However, due to the stance of the respondent, which the court has found to be unreasonable, the matter can only be concluded today. 

13.  I would also note that it is puzzling as to how the arrangements for the previous legal representation of LSY had been made. It is now clear that LSY would not be able to give proper instructions to a solicitor.  In fact, the Guardianship Board observed that LSY could not even recognise the solicitor who sat next to her at the hearing.  That is something that I would not be able to come to any definitive conclusion.  But that is certainly a factor that would weigh on my mind. 

14.  Hence, I have come to the conclusion that this case justifies a departure from the general costs position.  In respect of the costs spent on the issue of the mental capacity of LSY, the respondent should bear all the costs, including his own costs and also the applicant’s costs. 

15.  The idea for a Part II inquiry is that family members and relatives would come to the court and if they are acting bona fide, they would be providing useful information to the court in order for the court to make the best decisions for the MIP. 

16.  In these proceedings, not only has the respondent not given help to the court, in fact, his conduct has had the very unfortunate effect of dragging the whole matter until now. 

17.  Hence, I would make the order that he should bear the applicant’s costs on the issue of mental capacity on an indemnity basis.  

18.  Because he has not really been giving any help to the court in these proceedings, I also do not think that it is justified for his costs to be borne by the estate of LSY. 

19.  So those would be my reasons for the order.