RE LOUIE HOK CHOW

HCCV812/1984

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION FOR GRANT NO. 812 OF 1984

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REASONS FOR DECISION

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1.  By a purported notice of appeal dated 1 November 2011, the applicant appealed against the order of the master dated 27 October 2011, refusing his application for an order that the 1^st respondent :

(1)     be accounted for all the shares of and in Transport International Holdings Limited (formerly known as the Kowloon Motor Bus Company (1933) Limited) to him; and

(2)     pay all retained income or future income raised (sic) or arising from the aforesaid shares to be paid into an account as specified.

2.  On 21 December 2011, I dismissed the appeal with brief oral reasons.  I now reduce it into writing.

3.  At the hearing before the master, Mr Choy Bing Wing appeared for the applicant.  He relied on a power of attorney purportedly executed by the applicant dated 1 September 2011, authorizing him to do whatever the applicant may lawfully authorize him to do.  The master queried if Mr Choy could appear for the applicant.  Mr Choy referred to the power of attorney.  Upon further questions by the master, he told her that the applicant had been mentally incapacitated for about a year.  The master then observed, rightly so, that when he executed the power of attorney, the applicant must have been mentally incapable of so doing.  She therefore refused to allow Mr Choy to represent the applicant, treated him as absent and dismissed the application with verbal reasons.

4.  At the hearing before me, Mr Choy began by asking me to ask the bailiff to leave the court room.  He said he felt intimidated by the bailiff’s presence and could not make submission if he was there.  I refused his application because I did not think any reasonable man would be so intimidated.  What Mr Choy said was entirely nonsensical.  In any event, Mr Choy did make submission and respond to the court’s question on whether he had any right of audience.  He again relied on the power of attorney and said he did not tell the master that the applicant was mentally incapacitated.  He only said the applicant did not understand English and the master put words into his mouth.  He further said he was the only person who was familiar with the case.  It would be most unfair if he was not allowed to represent the applicant.  He then left the court room.

5.  Mr Choy’s reliance on the power of attorney is entirely misplaced.  According to the transcript of the hearing before the master, he did tell the master that the applicant had been mentally incapacitated for a year.  So the master was entirely correct in holding that the applicant did not have the mental capacity to execute the power of attorney.  What Mr Choy told me about what took place before the master, which was flatly contradicted by the transcript, was a blatant lie, which must be rejected.  I also rejected his assertion that the applicant executed the power of attorney because he did not understand English.  I, too, held that, on Mr Choy’s own admission, the power of attorney was ineffective when the applicant simply did not have the mental capacity to execute it.

6.  Mr Choy further relied on the Enduring Powers of Attorney Ordinance, Cap. 501.  But under the Ordinance, a donee of an enduring power of attorney may only deal with the donor’s property and financial affairs: see section 8(1).  He is not authorized to appear for the donor’s behalf in legal proceedings.

7.  The notice of appeal was taken out by Mr Choy purportedly on behalf of the applicant.  As Mr Choy could not rely on the power of attorney to do so, the notice of appeal was improperly constituted. The procedural error is so fundamental that it could not be cured.  On this ground alone, the appeal must be dismissed.

8.  In any event, I had had the benefit of reading the full reasons of the master for refusing the application on merits as contained in the transcript.  I agreed with her entirely.

9.  For the above reasons, I dismissed the appeal.