RE:S

HCMP 1287/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1287 OF 2004

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D E C I S I O N

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1. Since the introduction of the practice outlined in my judgment in Re A HCMP 44 of 2004, 5 March 2004, I have dealt with quite a number of paper applications seeking directions for inquiries. For some reasons, practitioners have not paid sufficient attention to what I said in Re A and the papers submitted quite often did not contain all the necessary information that this court should have in order to discharge its statutory duty under the Mental Health Ordinance properly. On some occasions, I regret to say that those acting for the applicants failed to pay heed to some fundamental matters. There is a need for this court to give some further guidance.

2. At the outset, I must stress that it is the duty of those acting for the applicants to familiarize themselves with the law. They should not and could not shift that responsibility to the court or the Official Solicitor. Before an application is launched, the lawyer responsible for drafting the application and collating and preparing the evidence has a duty to map out the overall case strategy in view of the legislative provision and the relevant case law. He should also familiarize himself with the facts of the case, obtain the necessary information and place the relevant evidence before the court. Each case must depend on its own facts. Hence, it is essential that those advising an applicant should get as much information as possible in respect of all matters relevant to the application. It is not enough to take the client's words on everything. There are inevitably matters in respect of which the lawyers are expected to conduct further investigation by asking for relevant documents or evidences, e.g. bank statements, further medical reports, and making enquiries with third parties. Failure to do so would only delay the application and increase the costs thereof.

3. The court also expects those advising an applicant on this sort of application to bear in mind that the paramount consideration of the court is the requirements of the mentally incapacitated person (see Section 10A(2)(a) of the Mental Health Ordinance ["MHO"]). Hence, the applicant and his advisers should be guided by the same consideration. It follows that all factors relevant to the welfare of the mentally incapacitated person ["MIP"] should be carefully considered with necessary information and evidence before the court. By way of example (and without being exhaustive), one must usually have regard to the existing and future care arrangement for the MIP and the costs thereof, his life expectancy and health condition and the maintenance of his family members. The income and expenditure of the family as a whole will be relevant. How the properties and affairs of a MIP should be managed obviously depend on these factors as well as how much he could afford to spend. The court will therefore look for this information before it could properly exercised its discretion under Part II of the ordinance.

4. The court will also take into account the views of those who were close to the MIP and those who might potentially be affected including those who have an interest in the estate of the MIP in the event of his death. I must emphasize that although the initial stage of a Part II application can proceed on an ex parte basis, it does not mean that the whole proceedings will be dealt with by way of ex parte application. As I said in Re A, the court cannot dispense with service on the MIP. The court will usually give directions for other interested parties to be notified and if necessary, they will be heard.

5. Hence, unless there are good reasons to the contrary, those acting for an applicant should take the initiative in ascertaining the views of the relatives in respect of the application before it is launched. If there is any likelihood of contest, the court should be told about the same as early as possible. If it is envisaged that the application would be seriously contested, the court may consider it necessary to have a direction hearing instead of giving directions on paper.

6. Further, if the application is for the appointment of committees and the proposed person to be appointed is not the Official Solicitor, the court needs to know the background, qualification, training and experience of the proposed appointee(s) in order to assess whether he or she is a suitable person to be appointed and whether he or she should give any security. The court will also consider the manner in which that person proposed to manager and administer the property and affairs of the MIP.

7. It is therefore obvious, as I have said in Para.17 of Re A, the requirements set out in Section 7 of the MHO is only the statutory minimum. Normally, the court requires fuller information and it is the duty of those advising the applicant to obtain and produce the same before the court.

8. Regrettably, far too often, there were applications that came before me for directions which did not even meet the statutory minimum. For example, notwithstanding the clear statutory requirement in respect of medical certificate under Sections 7(6) and 2(2) of the MHO, there are still applications that are not supported by the requisite certificates. Practitioners are reminded that,

(a) by reason of Section 2(2) of the MHO, at least one of the certificate has to be given by a practitioner approved for this purpose by the Hospital Authority. The applicant should verify this in his evidence when this is not clear on the face of the medical certificates;

(b) the certificate must be a current one because Section 7(6) refers to a certificate that the MIP is incapable;

(c) the certificate must certify that the MIP is incapable, by reason of mental incapacity, of managing and administering his property and affairs. On a number of occasions, the medical reports filed in support of an application did not certify the same. Without such certification, the mandatory requirement of Section 7(5) is not complied with and the court will not give directions for inquiry.

9. The aforesaid are general remarks for the benefit of everyone who wishes to make an application under Part II of the MHO.

10. In the present case, it is stated on the covering sheet for the two medical reports that one of the doctors who produced the reports is no approved doctor for the purpose of Section 2(2). Although there is not signature on the face of that covering sheet, it bore the name of the solicitors firm acting for the applicant. In the circumstances, the firm took responsibility for such a statement and I am prepared to accept the same. But the evidence is not clear as to life expectancy and the costs of the future care arrangement for the alleged MIP.

11. According to the certificate filed by the Applicant under Section 7(5), the alleged MIP has two landed properties under her name. There is no information as to the state of occupancy of the properties and whether they are generating rental income for the alleged MIP. I also do not know whether the Applicant intends to seek directions from the court as to the sale thereof. By reason of the proviso in Section 12 of the MHO, the court cannot empower a committee generally to sell any immovable property of an MIP. Specific directions should be sought from the court under Section 10B(1)(b) supported by proper valuation evidence and proposed mode of sale.

12. The court will also need to know how the Applicant proposes to deal with the Can$200,000 deposited in the Canadian court.

13. There are other matters that I have referred to above that the Applicant and those advising him should deal with before the inquiry.

14. I will make an order in terms of the draft directions submitted subject to the following riders,

(a) the dispensation of the doctors from attending the inquiry is subject to the filing of medical evidence to the prognosis and life expectancy of the alleged MIP within 28 days;

(b) the Applicant is directed to file supplemental evidence within 28 days to deal with the loose ends mentioned above.

15. For the benefit of future applicants and those advising them, I will hand down this decision in open court with the name of the alleged MIP edited to preserve the anonymity of those involved.