HCMC003514/1984
IN THE DIVORCE COURT OF HONG KONG
DIVORCE JURISDICTION
NO. 3514 OF 1984
________________
BETWEEN
MOK SHUM PIK YING
Petitioner
AND
MOK KAM BOR
___________________
Respondent
Coram: J.W. Hansen
Date of Decision: 2 October 1985
----------------------
Decision
----------------------
1. This was an application on behalf of the Director of Legal Aid for directions as to whether or not a guardian ad litem should be appointed to act for the Respondent MOK Kam-bor in this cause. The reason for the application was the Respondent's long history of psychiatric illness. Although not stated in the summons the Petitioner was seeking to have the Crown Solicitor appointed as guardian ad litem.
2. Initially, this application was opposed. Indeed, I was informed by Mr. Clough from the bar that considerable difficulty had been encountered with these relatively rare applications. I was pleased to be informed by Mr. Clough and Mr. Wingfield that agreement has now been reached as to the procedure to be adopted in such cases. It was suggested that it would be useful if I recorded this agreement in a judgment which, if circulated, would assist all those practicing in the family jurisdiction. I readily accede to that suggestion.
3. The agreed procedure is as follows:-
(1)
Wherever the Petitioner's solicitor has reason to believe someone is, or may be, a person under a disability within the meaning of the Mental Health Ordinance CAP 136, at that stage, under Rule 105(3) of the Matrimonial Causes Rules CAP 179 (i.e. before service) the Petitioner's solicitor should refer the matter to the Crown Solicitor to see whether or not he consents to act as guardian ad litem.
(2)
The Petitioner's solicitor is duty bound to provide the Crown Solicitor with all such information he has in his possession that is relevent to the Crown Solicitor's considerations.
(3)
It is unethical and a breach of professional practice for the Petitioner's solicitor to seek privileged medical information in relation to the Respondent's condition. He should not do so or be requested to do so.
(4)
If the Crown Solicitor then consents to act the papers are served on him and the matter proceeds in the normal way, subject to his right to apply to take himself off the record if the Respondent is no longer in need of a guardian ad litem.
(5)
If the Crown Solicitor does not consent to act the papers are served in the normal way. It may be, at the stage when the Petitioner applies for directions in the usual way, the Judge may refuse them because he is concerned that the Respondent is a person under a disability, notwithstanding that the Crown Solicitor has refused his consent. Indeed this position may be reached even though the Crown Solicitor has never been approached.
(6)
It is then incumbent on, and the duty of, the Petitioner's solicitor to apply to the Court under Rule 105(5) Matrimonial Causes Rule CAP 179 for directions as to whether or not the Crown Solicitor should be appointed to act as guardian ad litem. Mr. Wingfield stated that the Crown Solicitor would argue that the Crown Solicitor could only be appointed where he consents but he accepted that if the Court appointed the Crown Solicitor as guardian ad litem the Crown Solicitor would accept that appointment.
4. If the Crown Solicitor was not appointed at this stage the Judge would give directions for trial. Mr. Clough pointed out that this agreement pre-supposes there is no one else fit and able to act as guardian ad litem, which he said, was unfortunately the normal situation in Hong Kong.
5. Accordingly, in this particular case, by consent, the Crown Solicitor will be appointed as guardian ad litem subject to his filing his consent. Papers to be reserved.
( J.W. Hansen)
Representation:
Mr. N.J. Clough, Senior Legal Aid Counsel, for Petitioner.
Mr. J.G.M. Wingfield, Senior Assistant Crown Solicitor, for Crown Solicitor.