MORAL LUCK FINANCE LTD v. LAW KIN LEUNG AND ANOTHER

CACV 127 & 128/2013

CACV 127/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 127 OF 2013

(ON APPEAL FROM DCCJ NO. 736 OF 2011)

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Hon Cheung JA :

1. The applicant, who is the wife of the defendant, applied in two related proceedings to be appointed as the guardian ad litem of the defendant. The applications were refused by Deputy Judge R Yu (now H H Judge R Yu). The applicant appealed. We dismissed the appeal at the conclusion of the hearing. I now give the reasons for our judgment.

Facts

2. 1   The facts briefly are these : The plaintiff is a licensed money lender and had lent $30,000 to the defendant.  The plaintiff sued and recovered from the defendant $30,000 together with interest under a default judgment granted on 14 April 2011 in a District Court action, namely DCCJ 736 of 2011.  As the defendant had not met the judgment, the plaintiff then obtained a charging order absolute on 6 July 2011 against the property of the defendant situated in Hing Tin Estate, Kowloon (‘the property’).  The plaintiff further obtained on 18 October 2011 in another District Court proceedings, namely, DCMP 2062 of 2011, orders for possession and sale of the property.

2.2   On 27 January 2012, a firm of solicitors purportedly acting for the defendant, issued a summons seeking the appointment of the applicant as the guardian ad litem of the defendant and for the judgment given on 14 April 2011 to be set aside, and the charging order dated 6 July 2011 to be discharged in DCCJ 736 of 2011.

2.3   Another summons was taken out in DCMP 2062 of 2011 by the same solicitors, again acting as solicitors for the defendant, which sought the appointment of the applicant as the guardian ad litem of the defendant and the execution of the order for sale of the property to be stayed.

2.4   When the two summonses first came before the Judge on 2 February 2012, the plaintiff had already obtained vacant possession of the property and entered into a provisional sales and purchase agreement to sell the property.  By consent, the plaintiff undertook not to proceed with the sale until the issue of guardianship had been determined by the Judge.

2.5   The solicitors clarified to the Judge that the two summonses were issued on behalf of the applicant only.

2.6   There is also evidence that the defendant had previously obtained a mortgage on his property and had applied for and obtained loans from various financial institutions. The applicant had not explained the circumstances of these loans.

Personal history of the defendant

3. The Judge summarised the personal history of the defendant as follows:

‘ 31. According to the personal history, the Defendant has suffered from suspected hypoxic (lack of oxygen) injury to the brain during delivery. He has delayed development as compared with his brothers. He was a slow learner and he studied in Yau Tong Morning Hill School which is a special school for children with mild grade mental handicap. After graduation in 1986, he has worked briefly as cleaning worker in a private company. However, he has never sustained the open employment for long because of poor ability in comprehension, as well as failure to read written instructions. In the past few years, the Defendant helped in the cleaning company which is owned by his father. He participated in some casual work but he still needs to work under supervision. He is married at the age of 36 and his wife aged 32 come from Mainland China. They have a one year old daughter. The Defendant has no significant past physical illness except for the said suspected hypoxic brain damage during delivery.

…

33.  According to his wife, she discovered that the Defendant could not read when they first acquainted.  He could not read the short text messages that she sent him.  The Defendant is unable to do even simple calculation.  He also has poor ability in money management.  As an example, Madam Cheung gave him a $500 note to pay for a telephone bill of $280.  He was unaware of the need to have a change of $220.  He just casually said that $500 was good enough to settle the bill.

…

39.  On current condition, the Defendant is still working at his father’s company.  His salary is more than $7,000 a month.  He receives a cheque for his salary.  He has a bank account.  He deposits the cheque into the bank account.  He withdraws the money the next day.  He gives $7,000 to his wife.  He used his ATM card at times as he had been taught by a bank staff to use the card.  He withdraws $100 $200 or $300 on each occasion, he sometimes press the button wrongly and the card was taken by the machine.’

Joint medical report

4. 1   The parties obtained a joint psychiatric report from Dr Chung See Yuen (for the plaintiff) and Dr Ng Fung Shing (for the applicant) to evaluate whether the defendant was a mentally incapacitated person.  While both psychiatrists confirmed that the defendant had an IQ of 62, they differed as to whether the defendant was mentally incapacitated and unable to manage and administer his property and affairs.  Dr Ng was of the view that the defendant was not capable of instructing lawyers in the present proceedings while Dr Chung was of the view that the defendant was not mentally incapacitated and he was capable to instruct lawyers and manage his property and affairs.

4.2   Dr Chung had considered two video interviews of the defendant with a referral agent who had referred the defendant to obtain the loan from the plaintiff and had assisted the defendant to negotiate with the plaintiff to repay the loan.

4.3   The Judge accepted the view of Dr Chung and held that the applicant had failed to show that the defendant was a person under disability.

Order 80

5. 1   Order 80 rule 2(1) of The Rules of the District Court (Cap. 336 sub.leg H), provides that a person under disability must be defended by a guardian ad litem.

5.2   A ‘person under disability’ means, for the purpose of these proceedings, ‘a mentally incapacitated person’: rule (1).

5.3   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, as the case may be, is incapable of managing and administering his property and affairs: rule (1).

5.4   In this case it is not suggested that the defendant is ‘a mentally disordered person’, but rather he is a ‘mentally handicapped person’ within the meaning of the Mental Health Ordinance (Cap. 136) i.e. someone who is of sub-average general intellectual functioning with deficiencies in adaptive behavior : section 2.

The applicant’s appeal

6. 1   In gist the applicant’s grounds of appeal can be summarised as follows:

6.2   The Judge had not properly adopted the test in Ng Hong Ki v Leung Fong Kiu [2012] 1 HKLRD 435.  He had wrongly focused his attention, by reference to the defendant’s activities in relation to loans, on whether the defendant was capable of managing his property and affairs.  Instead, the focus should be on whether the defendant was capable of understanding the issues on which his consent or decision is likely to be necessary in the proceedings.

6.3   The Judge substituted the experts’ opinion with his own opinion by relying on his own view of the two video interviews.

6.4   The Judge wrongly found that the opinion of Dr Chung should be preferred.  He was wrong not to rely on the evidence of Dr Ng.

6.5   The Judge erred in relation to the standard of the medical evidence that would be required for the court to appoint a guardian ad litem for the defendant.

My view

I.  The test in Ng Hong Ki

7. 1   In my view the applicant has not properly understood the judgment of Ng Hong Ki.

7.2   As can be seen from the wording of Order 80 rule 1, the applicant must satisfy two requirements:

(1)   the defendant was a mentally incapacitated (in this case, a mentally handicapped person) person; and

(2)   he was, by reason of the mental incapacity, incapable of managing and administering his property and affairs. 

7.3   This is the only test propounded by Order 80 rule 1.  But as this test is considered in the context of litigation, this Court in Ng Hong Ki at page 445 summarised the principles involved in determining this issue :

‘ 34. For the purpose of an appointment of a guardian ad litem under O. 80, the test of mental incapacity is “issue specific” and the test that has to be applied is “whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers … the issues on which his consent or decision is likely to be necessary in the course of the proceedings”. The focus of the enquiry is on the litigation under consideration rather than the whole of that person’s property and affairs. Complete incapacity is not required to be established (Masterman-Lister v Brutton & Co. (Nos 1 and 2) [2003] 1WLR 1511, paras. 18, 27, 62, 75). These features were identified in a person that would lead the Court to conclude that he was a person under disability for the purpose of O. 80: “… he had no insight at all into his own mental state. He was not capable of instructing a solicitor properly. He certainly was not capable of exercising any reasonable judgment on a possible settlement.” (Kirby v Leather [1965] 2 QB 367, 384; see also Tang Kam Sheung v Tang Kit Yee, (unrep., HCA 677/2007, [2009] HKEC 1599), Carlye Chu J, para. 16).’

7.4   In re F (Mental Patient : Sterilisation) [1990] 2 AC 1, Lord Brandon at page 59 E-H construed the words ‘the affairs of patients’ in the context of Part VII of the Mental Health Act 1983, as including only ‘business matters, legal transactions and other dealings of a similar kind’.

7.5   In Masterman-Lister v Brutton & Co (Nos 1 and 2); Masterman-Lister v Jewell and another [2003] 1 WLR 1511, Chadwick LJ at paragraph 73 was of the view that the expression ‘property and affairs’ should be given the same meaning in the context of the English Rules of Supreme Court Order 80, the equivalent of our Order 80.  The same view was also expressed in the first instance decision of Masterman-Lister by Wright J at paragraph 15.  I agree with this view.

8. The ‘issue-specific test’ referred to in Ng Hong Ki was drawn from Masterman-Lister v Brutton & Co (Nos. 1 and 2) which was one of the authorities cited there.  In that case the plaintiff was 17 at the time of an accident in 1980 in which he suffered serious head injuries.  The writ was issued by his guardian which he adopted when he came of age.  Eventually the case was settled in 1987.  Later the plaintiff was not satisfied with the settlement and sued his former solicitors for professional negligence in not advising him properly of his entitlement.  The defence raised was one of limitation of action.  A preliminary issue was tried as to whether the plaintiff had been a patient within the meaning of Order 80 since the time of the accident and, if so, which period of time when he had been a patient between the date of the accident and the day of trial.  The purpose was to ascertain whether the plaintiff understood the settlement and had the ability to sue the former solicitors within the six year limitation period. Once the facts of the case are properly considered, one can readily understand the ambit of the ‘issue specific test’.  Kennedy LJ at paragraph 22 stated:

‘ There is no reported English decision directly concerned with the capacity to litigate and compromise but the courts have considered capacity in other contexts, for example the capacity to make a will: Banks v Goodfellow (1870) LR 5 QB 549. [He also referred to] the limitation case of Kirby v Leather [1965] 2 QB 367, 384.’

9. He then stated at paragraph 27:

‘ What, however, does seem to me to be of some importance is the issue-specific nature of the test; that is to say the requirement to consider the question of capacity in relation to the particular transaction (its nature and complexity) in respect of which the decisions as to capacity fall to be made.  It is not difficult to envisage plaintiffs in personal injury actions with capacity to deal with all matters and take all ‘lay client’ decisions related to their actions up to and including a decision whether or not to settle, but lacking capacity to decide (even with advice) how to administer a large award.  In such a case I see no justification for the assertion that the plaintiff is to be regarded as a patient from the commencement of proceedings.  Of course, as Boreham J said in White’s case 12 November 1987, capacity must be approached in a common sense way, not by reference to each step in the process of litigation, but bearing in mind the basic right of any person to manage his property and affairs for himself, a right with which no lawyer and no court should rush to interfere.’

10. In the first instance, Wright J held that the plaintiff was not under disability by considering the way the plaintiff conducted his everyday life and affairs in the past twenty years since the accident but with an emphasis on the distinction between management of day to day affairs and the management of more serious problems pertinent to the issue at stake.  The Court of Appeal confirmed this view : see judgment of Kennedy LJ at paragraph 54.

11. As I have said, since the issue of incapacity is considered in the context of litigation, one has to find out whether the defendant in this case is capable of understanding (with the benefit of legal assistance) the issues on which his decision is likely to be necessary in the course of proceedings.  However in order to reach a view on this matter, the Court is clearly entitled to consider the defendant’s capacity in relation to the particular transaction, namely, the loan and the change, if any, in that capacity since the transaction in question.  The evidence that one needs to consider is more than his answers in the interview with the doctors.  Instead, one is equally entitled (and I would say bound) to consider the evidence which may show the defendant’s understanding of the nature of the loan and his reactions when he was pressed with payment.  In this case, the defendant clearly knew he was being sued on the loan, he knew he had to pay interest and he knew the consequence of the proceedings against him, especially on the order for possession of his property. He was seeking a compromise.  He asked the plaintiff not to take possession of his property and he asked for payment by instalment.  All this took place in close proximity to the time when the applicant claimed that the defendant was a mentally handicapped person.  It is through such evidence, together with other relevant ones, that one may come to a view on the defendant’s capacity in respect of the loan and also of the present legal proceedings.

12. In this case, the Judge had considered the medical evidence and the evidence of the video interviews when he reached the conclusion that the defendant was not under disability.  The Judge summarised Dr Chung’s view of the defendant as follows :

‘ 45. Dr Chung agreed that the IQ of the Defendant is 62 and he has been functioning in the mild grade mentally retarded range since young. But he opines that mentally retarded patient may or may not be a mentally incapacitated person. Dr Chung has doubt on the genuineness of the performance of the Defendant in the examination.

  …

47. Dr Chung observed that the Defendant has worked for 10 years or more as a cleaner.  He became acquainted with his wife when they met within a coach. He had courtship with her and married.  He now has a 4 years old daughter.  It indicates that he is functioning very satisfactorily in the community.  His level of functioning is comparable with a person with mild grade mentally retardation, and according to the said passage, during the adult years, they usually achieved social and vocational skill adequate for minimum self support but may need supervision, guardians and assistance, especially when under unusual social or economic stress.  Dr Chung believes the Defendant is mentally fit to perform all activities of daily living.  Any impairment by the mild grade mental retardation is mild and is compatible with most usual functioning.

48. Dr Chung also noted that a person with mild grade mental retardation can acquire academic skill up to approximately primary 5 or 6.  It is unlikely that a mild grade mental retarded person could not do 1 + 1 or 10 – 7.  Inability to perform such simple arithmetic is not commensurate with the defendant’s level of functioning: he has a job, has a bank account, and is able to withdraw money with an ATM card, has a wife and daughter and he can live fairly independently in the community.

49. Mini mental state examination has been carried out and the defendant scored 13 out of 30.  It suggested that he is suffering from moderate dementia.  Dr Chung opines that patient with mild dementia tends to score 20 to 24.  It is likely that the Defendant has portrayed a worse picture of his mental functioning in the present examination.

50.  Dr Chung also observed the Defendant says he did not know or cannot remember something when he knows said that interviewers are testing his ability.  As an example, when the interviewers are testing his mental function, the Defendant cannot tell the day, the season.  He gives history which would indicate mental functioning when he does not know the interviewers are testing his ability.  For example he says he has a bank account, he knows how to deposit his money into his bank account, he can use an ATM card to withdraw money, he knows his salary, and he goes to work alone.  The discrepancy in the performance suggests that his mental ability should be better than he has presented.

51. The Defendant said in the interview that he cannot remember on many occasions.  Dr Chung opines that intellectual impairment is found in people with mental retardation, but significant memory impairment is not a feature of mild grade mentally retarded person.

52. Dr Chung also made reference to video recording which I shall come to later on the conversation between the Defendant with a staff of the Plaintiff’s agent.

53. The Defendant told the experts that he does not know the amount of money he has borrowed, the monthly installments and interest rate.  However, according to the video, the Defendant is able to tell one Mr Wong about the amount he borrowed and the approximate monthly installments.  He even asked Mr Wong for a decrease in interest rate which indicates he should know the difference between high and low interest rate.  The recorded interview indicates that he has a satisfactory understanding about borrowing money.  He knows that he has to repay the loan and interest is incurred.  He also asked Mr Wong in the recorded interview not to let people take possession of his flat.  That suggests the Defendant knows the consequence of failure to repay the loan.  He said he would repay the loan in exchange for not surrendering the possession of the flat.

54. Further, with assistance of the video, Dr Chung also concluded that the Defendant would give the impression to a lay person that he has received low education and is not a bright person.  He does not have abnormal faces and does not appear to be a mentally abnormal person in the recorded interview.

55. Dr Chung agreed that mild mental retardation is a permanent disability and his mental functioning has been seen since early adult hood.  He would be able to acquire more knowledge and skill as a result of life experience from time.  He believed his mental capacity has not shown any change from 2008 to 2012.

56. It is the opinion of Dr Chung that the Defendant is not incapable, by reason of mental incapacity, as defined in the Mental Health Ordinance, of managing and administering his property and affair.  Dr Chung believed the Defendant would have understanding of the nature of the loan agreement that he had entered into in 2008.  The Defendant’s alleged mentally incapacity would not be apparent to the plaintiff or its agent.’

13. In respect of the video interviews, the Judge himself had viewed them.  He also referred to the evidence of the referral agent.  This is the Judge’s summary of the evidence :

‘ 57. I have viewed the 2 video produced.  They are taken by Mr. Wong Wai Kit of Intell Finance and Mortgage Company.  According to his affirmation filed herein on 16 February 2012, his company is a referral agent for banks and finance companies.  They have referred the Defendant to borrow a loan of $15,000 from the Plaintiff on 14 July 2008, and subsequently for another loan on 12 August 2008 for $30,000.  The Defendant paid back the Plaintiff for the 1^st loan and interest thereon at $660.  That also explains why on borrowing, the Defendant immediately paid back $15,660 to the Plaintiff.  So in effect, the Defendant has borrowed $30,000 from the Plaintiff by 2 loans.

58. In March 2011, the Defendant called Mr. Wong and met him in the afternoon of 9 March 2011.  The conversation was video taped and produced in the Affirmation.  The Plaintiff has produced a transcript of the video tape. 

59. In the meeting, the Defendant told Mr. Wong that he was being sued by the Plaintiff for his default in payment of the 2^nd Loan.  The Defendant explained that he had lost his wallet and documents including his identity card a fortnight ago.  The Defendant asked Mr. Wong to convey to the Plaintiff that he did not want litigation, and would continue with the installments.  The Defendant proposed to pay $1500 a month, and to repay the loan by installment.

60. This conversation last for about 25 minutes.  And they also have talk or discussion on other matter.  The Defendant has informed Mr. Wong about his loan from State China Finance Limited (及時雨財務有限公司).  He can relate to Mr. Wong that there was litigation with State China and subsequently the proceedings were settled and he did not need to repay the loan.

61. On 10 December 2011, the Defendant visited Mr. Wong again and the meeting is again video taped.  He told Mr. Wong that the Plaintiff is taking action to obtain possession of his flat.  He asked Mr. Wong to request the Plaintiff not to do so.  He explained that he had not paid the installments since May 2011 because he had to help his friend’s relative with funeral expenses. 

62. There is no dispute on the truthfulness of these video records.’

14. In my view, in the context of this case, the Judge had not erred at all in his approach in applying the issue specific test.

II.  The Judge’s own view

15. I cannot see how the Judge can be faulted in viewing the video interviews himself.  The ultimate question as to whether the defendant was a mentally incapacitated person was not to be decided by the medical experts but by the Judge himself. He had to consider all the surrounding circumstances but focusing on the serious problem of the defendant obtaining the loan.  The decision involved both law and facts.  The Judge would have excluded an extremely relevant piece of evidence if he was to ignore the video interviews.  This Court had also viewed the interviews and agreed with the Judge’s conclusion.

III.  Wrong reliance on Dr Chung’s evidence?

16. After Dr Chung concluded that the defendant was not incapable of managing and administering his property and affairs and that he understood the nature of the loan in 2008, he then stated :

‘ 34. I believe Mr. LAW is capable of instructing lawyers now in relation to the present proceedings despite the mild grade mental retardation. Mr. LAW would need more explanation by the lawyers as he would have difficult to understand complicated matters. However, he should be able to understand the general and broad concepts related to the legal proceedings and litigation.’

17. I have to disagree with counsel for the applicant, Mr Tim Wong’s submission that Dr Chung provided no reason for his conclusion on the defendant’s capacity to instruct lawyers.  Viewing the whole of Dr Chung’s opinion, which one must, his conclusion was clearly based on the defendant’s understanding of the loan he had obtained in 2008 and Dr Chung’s view that the defendant’s condition had not changed between 2008 (i.e. when the loan was obtained) and 2012 (i.e. the examination of the defendant by Dr Chung).

18. By contrast, Dr Ng only focused on the response of the defendant in his interview and the history of the defendant as provided by the applicant.  In respect of the defendant’s own response, Dr Ng said that :

‘ 17. Mini-mental state examination (MMSE) was administered.  He scored 13 out of a total of 30.  He was unable to tell the date of the examination.  He did not know the current season.  He came to see us by MTR.  He alighted at Central station.  He could not tell the nature of the interview room.  He knew that he was in Hong Kong.  He was unable to do simple calculation (e.g. 100 ‒ 7 = ? and 20 ‒ 3 = ?).  He was unable to read and perform simple Chinese instruction ‘拍手’ (clapping hands).  It reflects he has significant intellectual impairment.

  18. He was asked to perform simple arithmetic.  He said he did not know when he was asked to do 8 + 15. He said 1 + 1 = 5.  When he was asked to do it again, he said 1 + 1 = 3 and then 4.  He was asked the change when he paid $10 for an item costing $2.  He said he did not know the change: he did not look at the change and would not care about it.

19. He was told that a finance company was suing him.  He knew, but he did not know the nature of the litigation.  He knew that he could request a solicitor to assist him.  He did not know how to find a solicitor.  He did not know how to answer if a Judge asked him something.  He did not know the consequence should the financial company win the case.  He did not know the law.  He had repaid some loans to the finance company.  He could not remember the amount outstanding.  He had deposited money into a bank of the finance company on a few occasions and he had given the deposit advice to the solicitor.  He had signed on a document when he borrowed money.  He could not recall the nature and content of the contract.  He said he could not remember when he was asked why he had signed the contract.  He said he did not know the contract as he could not read Chinese and English.  He was forced to sign.  He was not told the consequence if he did not act according to the contract.  He was hurried to sign.’

19. In order to test the veracity of his response, one would expect Dr Ng to refer to the video interviews.  After all, the videos were amongst the documents supplied to the two doctors for the purpose of assessment and in the joint instruction by the parties to the two doctors, they were requested to consider, amongst other things :

(b)   Whether there would have been changes in the defendant’s medical conditions during 2008 to 2012.

(c)   Whether the defendant would have understanding of the nature of the loan agreements that he had entered into in 2008; and whether the defendant’s alleged mental incapacity would be apparent to the plaintiff (or its agents) in dealing with the defendant in relation to such loan transactions in 2008.

20. The parties elaborated on the instructions on these issues as follows :

‘ 8. For agreed issue (b), such assessment is necessary because the loan transactions took place in 2008; the surveillance videos of discussions with Mr. Law were taken by Intell Finance and Mortgage Company (an agent of the Plaintiff or Moral Luck Finance Limited) in 2011; and Mr. Law’s wife now applies for herself to be appointed as guardian ad litem for Mr. Law in the present proceedings, on the basis that he is now mentally incapacitated and cannot manage and administer his affairs.

9. Agreed issue (c) is related to the merits of the Defendant’s defence that the loan transaction 2008 should be set aside because of he was then a mentally incapacitated person.’

21. In my view the Judge was clearly entitled to rely on the evidence of Dr Chung. 

IV.  Wrong medical standard

22. The applicant argued that the Judge had not properly applied the test in Ho Po Chu v Tung Chee Wah & Ors [2006] 3 HKLRD 553 which addressed the quality or standard of medical evidence pertinent to an Order 80 inquiry.  The relevant tests are set out in the following passages :

‘ 46. In a situation where an act in legal proceedings is clearly for the benefit of the person in question, it is unnecessary for formal medical evidence to be adduced to show that the plaintiff needs by reason of mental incapacity to sue by a next friend or defend by a guardian ad litem, let alone for time and costs to be expended on a Pt.II inquiry.

……

52. It is therefore clear in my view that the Court should adopt a flexible approach to the evidence of mental incapacity under O.80. Where mental incapacity is relevant because a debarring order is sought, the court would expect clear medical evidence to prove the mental incapacity because the effect of a debarring order is to restrict a person’s direct access to the court. However, where mental incapacity is relevant because an action is started by the next friend (or defended by the guardian ad litem) of a person said to be suffering mental incapacity and that act is obviously for the person's benefit, the court would not initially require formal medical evidence, although it would of course be prudent for the next friend or guardian ad litem (and the solicitor acting under his instructions) to have medical evidence available before the event in case of challenge.’

23. The applicant complained that notwithstanding that the present inquiry is that of an Order 80 inquiry, the Judge had chosen to adopt a higher standard that is required for other types of inquiry and required two medical experts to provide evidence on this issue.

24. In my view the matter has to be viewed in its proper perspective.  This is not a case where the applicant intervened at an early stage of the proceedings.  She only appeared after the judgment had been obtained and enforcement proceedings had been taken.  Raising the issue of the defendant’s disability at such a late stage clearly required cogent evidence to be given.  In any event, the provision of two experts was agreed to by the parties who were legally represented.  I cannot see how the Judge’s decision can be faulted.

V.  Other applications

25. As the applicant’s other applications on setting aside the judgment and staying the execution thereof were based on the same ground as her application to appoint herself as guardian ad litem, her failure on the primary application will necessarily mean her failure on the other applications as well.

Conclusion

26. Accordingly the appeal was dismissed with costs to the plaintiff to be taxed if not agreed. The applicant’s own costs to be taxed in accordance with the Legal Aid Regulations.

Hon Yuen JA :

27. I agree with Cheung JA’s reasons for judgment.

Hon Chu JA :

28. I agree and have nothing to add.