SZETO KWOK HUNG ROQUE v. SZETO KWOK KWONG BERNARD AND OTHERS

HCMP 2596/2017

[2020] HKCFI 2349

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2596 OF 2017

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D E C I S I O N

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1.  The parties have been before me. For background of the case, I refer to my Decision of 18 April 2018[1]. On that day, I ordered, with some amendments, the continuation of an ex parte Injunction Order which the plaintiff had earlier obtained against the defendants (“Injunction Order”). I refer also to my other decision of 18 September 2018[2] relating to an application by the defendants for an unless order against the plaintiff.

2.  The parties have since commenced HCMH 83/2018 and HCMH 28/2019.  On 22 November 2019, the Official Solicitor was ordered to be appointed as the committee of the estate of the parties’ mother (“TLW”). 

3.  On 27 August 2020, the plaintiff sought to apply, on an ex parte basis, for certain amendments to the Injunction Order, that:

“ Para 1.1.2 of the [Injunction Order] be varied to the extend [sic] to include the choice of hospital of [TLW] and nursing care arrangement and the costs and expenses be paid by the official solicitors, committee of [TLW].”

4.  The relevant papers were on that day placed before me.  I noted the involvement of the Official Solicitor.  I noted that there had been communications between the parties in relation to the transfer of TLW from Canossa Hospital (Caritas) (“Canossa”) to Hong Kong Sanatorium & Hospital (“HKSH”). In their letter dated 13 August 2020 to the plaintiff, Messrs Bernard Wong & Co, solicitors for the defendants, in fact said that “We have instructions to receive service of any application(s) you may wish to make to Court for the transfer of Mother from Canossa to HKSH”.  There was no secrecy which would have justified the plaintiff proceeding with the application on an ex parte basis.  No explanation was given as to why the papers were not served upon the defendants.  I on 27 August 2020 directed inter alia service of the papers on the defendants and Official Solicitor and a return date be obtained in accordance with the Rules of the High Court.  

5.  Service was effected by the plaintiff on 27 and 28 August 2020.  A return date of 4 September 2020 before the Summons Judge was obtained.

6.  Late in the afternoon on 3 September 2020, the plaintiff wrote in and claimed that he was “unable to accommodate the new court date”.  He further said that he had lost his voice and could not talk.  He asked the matter to be postponed to 18 September 2020.  When giving directions in response, I pointed out that the hearing date of 4 September 2020 was not a new court date, but one assigned pursuant to Practice Direction 5.3 upon the plaintiff having properly filed his inter partes summons. Ultimately, having ascertained the stances of the other parties, I directed the hearing to proceed as scheduled, and indicated that further directions might be given during the hearing.

7.  This morning, the plaintiff appears in person.  He was able to talk. Mr Leo Remedios appears for the defendants.  Mr Philip Cheng appears on behalf of the Official Solicitor.

8.  The amendments sought by the plaintiff comprise 2 parts:

(a)  an extension to choice of hospital and nursing care (“Limb 1”); and

(b)  payment of costs and expenses by the Official Solicitor, the Committee of TLW (“Limb 2”).

9.  The immediate reason that led to the application is the disagreement between the parties as to whether TLW should remain hospitalized at the Canossa, or whether she should be transferred to the HKSH.  The plaintiff insists upon the transfer, which the defendants object. 

10.  As both Mr Remedios and Mr Cheng have submitted, allowing the application would allow the plaintiff powers not just to override the views of his siblings but also that of the Guardianship Board (applications before which are pending).

11.  The Official Solicitor objects to the application.  Specifically in respect of Limb 2, Mr Cheng submits that whether TLW is going to stay at Canossa or HKSH, the medical bills will be settled by TLW’s estate for her interest.  There is no compelling reason for making a mandatory injunction against TLW’s estate in that regard.  Further, Mr Cheng submits that if the plaintiff takes the view that TLW is in imminent danger because of the poor medical care provided by D2’s medical team, he should proceed with the action herein to obtain the final injunction.  Mr Cheng submits that a further application for varying the Injunction Order is an abuse of process.

12.  Mr Remedios echoes and adopts Mr Cheng’s submissions in so far as Limb 2 is concerned.  In respect of Limb 1, Mr Remedios’ principal submission is that the plaintiff’s application is unsupported by any kind of medical evidence which positively indicates that there is a need of any added medical benefit for the transfer.

13.  I note also that applications have been made before the Guardianship Board for the guardianship of TLW.  Hearing has been pending.

14.  Mr Remedios asks for the dismissal of the application, and if this Court is not prepared to do so at this stage, adjournment for substantive argument with directions on the filing of evidence.

15.  This is the first hearing of the application.  There is force in Mr Remedios’ submissions about the insufficiency of the medical evidence that the plaintiff has so far adduced (which principally takes the form of 2 letters of Dr Alex Chow and Dr Chuang Lai dated respectively 31 July 2020 and 22 January 2020).  Nowhere has it been said that the care which TLW has been receiving at Canossa has been sub-standard, to the extent that she has to be transferred.  In the course of his oral submissions, the plaintiff says that he has asked the doctors to tell the truth, but that they were reluctant to criticize their fellow professionals.  I cannot receive such evidence given in the course of submissions.  In any event, the reality remains that the medical evidence that is before me is sparse.

16.  In the course of the hearing, the plaintiff stressed emotionally a number of times that TLW has lost her toe, that she might lose further one of her lower legs, and that her life expectancy is short.  I have considered what he submitted to me.  Bearing in mind TLW’s age and health conditions, and in the absence of any evidence to that effect, I cannot infer that those were the results of any sub-standard care and treatment which TLW had received, and that the transfer requested would be in her interest.  I note further that in the letter of 22 January 2020, Dr Chuang Lai said that “I support the idea of Professor Szeto of moving [TLW] to [HKSH] … when her condition is stable”.  But as Mr Remedios has pointed out, there is no evidence that the current condition of TLW is stable.  It should also be emphasized that by the proposed variation, the plaintiff is not seeking simply a transfer of TLW from Canossa to HKSH, but the general power to inter alia override his siblings over the choice of hospital.

17.  I point out on the other hand that there is some evidence capable of being regarded as evidence in support of the plaintiff’s application — see in particular the part of Dr Chuang Lai’s letter cited above.  Given such evidence, though particulars are wanting, I am not prepared to dismiss the application outright.

18.  On the other hand, I will not grant the application without affording the defendants the opportunity to file evidence.  This is particularly so given the unsatisfactory quality of the evidence which the plaintiff has placed before me

19.  All matters relating to the health and welfare of a 96-year-old involve some unpredictability and urgency.  But TLW is currently already in the hands of a team of professionals.  The existing medical costs are about HK$1,000,000 per month, which give some indications as to the quality of the treatment TLW has been receiving.  Even the medical evidence adduced by the plaintiff suggests that if there is to be any transfer, the same team should still be retained.  There is no evidence before me which suggests that any transfer ought to be immediate.  Even when orally explaining his plan to me on the treatment of TLW, the plaintiff is only able to say that, if a transfer is permitted, he will then consult a senior doctor at HKSH (Professor Lai) to work out a further plan, and that he will also locate the nurse and helper who had previously been taking care of TLW to assist (though in the case of the helper, who is currently in the Philippines, the plaintiff does not even have her address).  The plan does not appear to me to be a very detailed or concrete one.

20.  I have therefore decided to adjourn the summons for substantive argument.  I give the directions set out at §32 of Mr Remedios’ written submissions.  I direct that 3 hours be reserved.  I order that the listing of the matter be expedited.