RE SHANG KIANG YUEN

HCMP000060A/1968

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

MISCELLANEOUS PROCEEDINGS NO. 60 OF 1968

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IN THE MATTER of SHANG KIANG YUEN (          ), a Patient. and IN THE MATTER of Section 116 (1)(d) of the Lunacy Act, 1890 repealed by s. 105 of the Mental Health Act, 1959. and IN THE MATTER of Section 8 (2)(a) of the Supreme Court Ordinance, Cap.4.

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Coram: Blair-Kerr, J.

Date of Judgment: 30 May 1968

 

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JUDGMENT

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1. The proceeding before me is an application in chambers brought by way of originating summons for the appointment of receivers of the income of Shang Kiang Yuen. The summons was taken out by Mr. Shang's wife and son; and, for the purpose of this decision, I shall callthem the first applicants.

2. By summons dated 3rd April 1968, certain other members of his family (whom I shall call the second applicants) applied to have their names added to the originating summons as applicants. I acceded to their application and their names have been added as applicants in the originating summons.

3. As I was about to commence the hearing of the originating summons, the second applicants submitted that I had no jurisdiction to appoint receivers under s. 8 (2)(a) of the Supreme Court Ordinance and that a fresh application should be made under s.7 of the Mental Health Ordinance. I rejected this submission holding that I had jurisdiction to appoint a receiver under s.8(2)(a) of the Supreme Court Ordinance.⁽¹⁾

4. The second applicants have now filed notice of appeal against that ruling; and, by summons dated 11th May, they have applied for an order that all proceedings on the application for the appointment of receivers be stayed pending the hearing of their appeal against my ruling.

5. In deciding whether to grant or refuse a stay, it seems to me that a relevant consideration is whether my ruling on the question of jurisdiction is an appealable matter at this stage. If, on the authorities, it were to appear that a ruling of this kind is, in all probability, not appealable at this atage (and that the chances are that the Full Court will say so) this is a factor which should weigh with this court in the exercise of its discretion.

6. Mr. Oswald Cheung, counsel for the second applicants, submitted that the decision of the Full Court in Heng To Lin and others v. Heng Kwai Shan⁽²⁾ is no longer an authority on this question because that case was decided before the enactment of the Rules of the Supreme Court 1967. Counsel laid stress on the present o.58 r.7 which reads:-

"Subject to section 29 of the Supreme Court Ordinance an appeal shall lie to the Full Court from any judgment, order, or decision of a judge in chambers."

Section 29 of the Supreme Court Ordinance reads:-

"There shall be an appeal as of right from every decision of one of the judges sitting alone on the trial of any action or other proceeding (other than a criminal trial) and every appeal from such decision, and every question of law reserved for further consideration on any such criminal trial, shall be heard before the Full Court."

Mr. Oswald Cheung submitted that the only effect of the words "subject to section 29 of the Supreme Court Ordinance" in o.58 r.7 is to prohibit appeals in criminal matters because such appeals are now brought pursuant to s.81 of the Criminal Procedure Ordinance; and that this court is no longer concerned with the meaning of the word "proceeding" in s.29 of the Supreme Court Ordinance.

7. A provision in substantially the same terms as s.29 was first enacted as s.18 of the Supreme Court (Reconstitution) Ordinance No.12 of 1873. In those days there were no appeals in criminal matters; and in England the Court for Crown Cases Reserved was concerned only with questions of law reserved for its opinion by the court of trial. The words "every question of law reserved for further consideration on any such criminal trial" in s.29 clearly refer to the powers which were conferred upon the court of trial by s.80 of the Criminal Procedure Ordinance and which enabled the trial judge to reserve questions of law arising on the trial of an indictment for the decision of the Full Court long before the enactment of the Criminal Appeal Act, 1907 in England and s.81 of the Criminal Procedure Ordinance in Hong Kong. But in this application I am not concerned with the latter part of s.29. It is the first part of the section which is relevant to the question before me.

8. In framing the Rules of the Supreme Court 1967, we endeavoured to follow the corresponding rules of procedure in England and o.58 r.7 appears to be an adaptation of the corresponding English rule which also contains the words "any judgment, order, or decision". However, it should not be forgotten that the language of s.31 of the Supreme Court of Judicature Act 1925 is very different from that of s.29 of the Supreme Court Ordinance; and although the corresponding English rule contains the words "any judgment, order, or decision", in England appeal against an interlocutory order is, with certain exceptions, by leave only⁽³⁾. In Hong Kong there is a right of appeal from "every decision of one of the judges ......... on the trial of any action or other proceeding .........;" and it is s.29 which governs rights of appeal to the Full Court. Such rights may not be extended by a rule of procedure.

9. The difficulty, as I see it, springs from the phraseology of s.29. Does the word "on" in the phrase "on the trial of any action or other proceeding" mean "at any stage during"? A similar phrase occurs in s.80 of the Criminal Procedure Ordinance (to which s.29 of the Supreme Court Ordinance makes reference by implication). Section 80 reads:-

"The judge may reserve for the consideration of the Full Court any question of law which may arise on the trial of any indictment, and, in case the accused person is convicted, may postpone judgment until such question has been considered and decided ........"

From a cursory glance through the law reports, it appears that the last occasion on which a judge reserved a point of law under this section (formerly s.81) was in R. v. To Lam Sin⁽⁴⁾ In that case, before arraignment, counsel for the accused moved to quash the indictment on the ground that the court was without jurisdiction. Upon a point of law being reserved, the Full Court ruled that the court had jurisdiction; and the trial of the indictment proceeded. As the accused had not pleaded to the indictment when the judge reserved the point of law, it is arguable that the trial had not, in the strict sense, commenced. But it is clear from s.80 itself that the only purpose in retaining this section in our law is to enable points of law to be referred to the Full Court for decision during the course of the trial at any stage prior to judgment. After judgment, an accused person may raise any point of law by way of appeal under s.81.

10. I do not think that the word 'on' in the phrase "on the trial of any action or other proceeding" in s.29 of the Supreme Court Ordinance carries the same meaning as it does in s.80 of the Criminal Procedure Ordinance. The appellate jurisdiction of the Full Court in civil matters is conferred by s.29. The intention appears to have been to confer a right of appeal from the final decision of a single judge in any proceeding. If the decision appealed against is not one given in a proceeding, the Full Court has no jurisdiction to entertain it. As Huggins, J. said in Heng To-lin⁽²⁾:-

".......any application which is made during and which is incidental to the trial of an action or other proceedings is not itself a 'proceeding' within the meaning of section 28" (now s.29) "of the Supreme Court Ordinance. In so far as it may be an application which before trial could have been made as a separate proceeding it merges in the greater proceeding, the trial of the action, and the decision on the application is not one against which an appeal lies as of right (or at all) pending a decision on the trial".

In my view the only effect of o.58 r.7 is to declare that any final judgment, order or decision in a proceeding heard in chambers may be appealed.

11. In this case, the second applicants having successfully applied to be added as parties to the application under s.8(2)(a) of the Supreme Court Ordinance for the appointment of receivers, then proceeded to object informally to my carrying on with the hearing of the originating summons on the ground that I had no jurisdiction. They did not initiate their objection formally by summons. They simply made an oral submission at the commencement of the hearing of the originating summons and I ruled against their objection.

12. It is true, of course, that a decision as to whether the court has jurisdiction to proceed at all is a far more important decision than, say, a decision on whether to strike out a paragraph in an affidavit. But that seems to be quite beside the point. The question is this: can it be said that the second applicants' informal objection to my hearing the originating summons is a "proceeding" within the meaning of s.29 of the Supreme Court Ordinance so as to make my ruling upon it an appealable matter at this stage? I think the answer must be in the negative. If it were otherwise, where is one going to draw the line? Why should not a judge's ruling as to admissibility of evidence during the hearing of a civil suit not be appealable immediately? The fact that I gave reasons in writing for ruling as I did could not convert the matter into a proceeding; and unless and until the Full Court rules otherwise, it seems to me that this is a factor which I ought to take into consideration in deciding whether to grant a stay of proceedings on the originating summons.

13. It appears from the affidavits that Shang Kiang Yuen is a fairly wealthy man; and that the children of his wife and the children of his concubine do not see eye to eye on how his estate should be administered, one side favouring a committee under the Mental Health Ordinance and the other side favouring the more expeditious procedure of asking the court to appoint receivers, as is the practice in England. Mr. Oswald Cheung's clients favour the appointment of a committee under the Mental Health Ordinance; and his main submission on the application for stay was that, if the Full Court were to hold that this court had no jurisdiction to appoint a receiver, his client's interests might be seriously prejudiced.

14. It seems to me that a receiver (or as in this case, a number of receivers) would be acting under the supervision of the court and under the watchful eye of all those interested in the estate. As at present advised, I do not really see any advantage in holding matters up on the off-chance that a committee under the Mental Health Ordinance may ultimately be appointed; and the application for a stay is accordingly refused.

15. It may be, of course, that this decision will have no practical effect because I was given to understand that since I was unable to hear the originating summons on Wednesday, 22nd May, there are now no dates available for the hearing which are suitable to all counsel concerned in the case prior to the dates which the Full Court have fixed for the hearing of the appeal, namely, 18th and 19th July 1968.

16. The parties will have liberty to argue the question of costs of this application.

 

 

	(W.A.Blaif-Kerr)
	Puisne Judge
	30 MAY 1968

  

Representation:

Benjamin Liu & Henry Litton (Hon & Co.) for the 1st Applicants

O. V. Cheung, Q.C., & J.D.M. Donnelly (Brutton & Co.) for the 2nd Applicants

 

 

(1) Ruling handed down on 16th April 1968.

(2) (1965) H.K.L.R. p.1144

(3) Supreme Court of Judicature Act 1925 s.31(1)(i)

(4) (1952) 36 H.K.L.R. p.1

HCMP000060/1968

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

MISCELLANEOUS PROCEEDINGS NO. 60 OF 1968

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IN THE MATTER of SHANG KIANG YUEN (          ), a Patient. and IN THE MATTER of Section 116 (1)(d) of the Lunacy Act, 1890 repealed by s. 105 of the Mental Health Act, 1959. and IN THE MATTER of Section 8 (2)(a) of the Supreme Court Ordinance, Cap.4.

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Coram: Blair-Kerr, J.

Date of Judgment: 16 April 1968

 

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JUDGMENT

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1. Shang Kiang Yuen, aged 73, is a very sick man; and it is most unlikely that he will ever recover. The medical evidence indicates that he is suffering from severe arteriosclerotic psychosis caused by degeneration of the blood vessels in the brain and haemorrhage of the brain substance. The result is that there is total disintegration of his personality; he has become disorientated; he is practically inaccessible and without memory; and dementia is advanced. There is no evidence that he requires hospitalisation for treatment of any kind, mental or physical. He is in his own home; but he is obviously quite incapable of looking after himself or his affairs.

2. Certain members of his family (whom I shall refer to as "the first applicants") have applied to me under s. 8(2) of the Supreme Court Ordinance for the appointment of a receiver. Certain other members of the family (whom I shall refer to as "the second applicants") have applied to be joined as parties; and I have acceded to their application. However, the second applicants submit that I have no jurisdiction to appoint a receiver under s. 8(2) of the Supreme Court Ordinance and that a fresh application should be made under s. 7 of the Mental Health Ordinance.

3. The second applicants argue that the Lunacy and Mental Treatment Acts 1890-1930 (hereinafter referred to as "the Lunacy Acts") have been repealed by the Mental Health Act 1959; that, before their repeal, this Court was empowered to exercise jurisdiction under the Lunacy Acts, but that there is now no jurisdiction to exercise; that the Mental Health Act does not apply to Hong Kong because it is not included in the schedule to the Application of English Law Ordinance 1966; that the intention of the legislature was that all applications relating to the administration of the property and affairs of a person suffering from mental infirmity should be brought under the Mental Health Ordinance; that s. 8(2) of Cap. 4 has been impliedly repealed, or alternatively that any jurisdiction conferred by it is merely supplemental to the jurisdiction conferred by the Mental Health Ordinance.

4. The Supreme Court Ordinance, in its preamble, states the purpose of the Ordinance to be :-

"............. to make provision for the jurisdiction, practice, procedure, and law to be administered in the courts in the Colony ..................".

Prior to its repeal in 1966, s. 5 declared that the statute law of England, as it stood in 1843, shall be "in force" in the Colony. The effect of this provision was that Acts which were in force in England in 1843 continued to be part of the law of Hong Kong until the local legislature declared otherwise. The repeal in England of a pre-1843 Act did not affect the law of Hong Kong; and courts frequently had occasion to apply a provision in an English Act which had long since been repealed.

5. When the Application of English Law Ordinance was enacted in 1966, s. 5 of the Supreme Court Ordinance (Cap.4) was repealed because the pre-1843 Acts which were henceforth to be in force in Hong Kong were listed in the schedule to the 1966 Ordinance. No post-1843 Acts were listed in the schedule; but under s. 4, any English Act (including post-1843 Acts) may be declared to be in force in Hong Kong; and one of the ways in which this may be done is by local ordinance.

6. Section 8(2) of the Supreme Court Ordinance reads:-

"The Supreme Court shall have in addition such jurisdiction as may be exercised in England by the Lord Chancellor or other judge or judges of the Supreme Court of Judicature under the provisions of the Lunacy and Mental Treatment Acts 1890 to 1930 ...............".

If this subsection had declared that the Lunacy Acts shall be "in force" in Hong Kong, the repeal of those Acts in England would not have effected any change as regards the law of Hong Kong, and the Acts would have continued to be in force until local legislation declared otherwise. However, this section does not declare that the Lunacy Acts shall be in force in Hong Kong. It says that this Court "shall have" "such jurisdiction as may be exercised" by the judges in England under the Acts; and the question arises as to the meaning of the words "shall have" as read with the words "as may be exercised". The Acts have been repealed; and today the judges in England may not exercise any jurisdiction under those Acts. But, did the Hong Kong legislature intend that this Court should continue to exercise jurisdiction under those Acts despite their repeal?

7. I think it is true to say that when a new edition of the Laws of Hong Kong is published, there is, technically, a re-enactment of all those laws. Therefore when the Griffin Edition was published in 1950, the Lunacy Acts were still in force in England; and the local legislature obviously intended that this Court should continue to have the jurisdiction then exercised by the judges in England under those Acts. But what was the intention when the Botelho Edition was published in 1966? Counsel for the first applicants submits that on that occasion there was no need to enact that the Supreme Court shall have such jurisdiction as was formerly exercised by the judges in England under the Lunacy Acts, because the intention was that the judges in Hong Kong should, at any given time, have the same jurisdiction as may be exercised by the judges in England; and that there was no necessity to alter the phraseology of s. 8(2) because the effect of s. 77 of the Interpretation & General Clauses Ordinance (Cap. I) is to substitute for the words "Lunacy & Mental Treatment Act 1890-1930" the words "Mental Health Act 1959".

8. Section 77 of Cap. I reads:-

"77.

A reference in any law to an imperial enactment or to any provision, part or division thereof shall be construed as a reference to the same as the same may be from time to time amended and as a reference to any imperial enactment or to any provision, part, or division thereof, substituted there for."

The preamble to the Mental Health Act 1959 reads:-

"An Act to repeal the Lunacy & Mental Treatment Acts 1890 to 1930 .............. to make fresh provision with respect to the treatment and care of mentally disordered persons and with respect to their property and affairs......"

Section 1 of the Act reads, in part:-

"1.

................... the Luncy and Mental Treatment Acts 1890 to 1930 .............. shall cease to have effect and the following provisions of this Act shall have effect in lieu of those enactments with respect to the reception, care and treatment of mentally disordered patients, the management of property, and other matters related thereto."

9. Turning to the provisions of the Lunacy Acts and the Mental Health Act 1959 relating to the appointment of a receiver, s. 116(1)(d) of the Lunacy Act 1890 reads:-

"The powers and provisions of this Part of this Act relating to management and administration apply:-

	(a)	.........................
	(b)	.........................
	(c)	.........................
	(d)	To every person not so detained and not found a [person of unsound mind] by inquisition with regard to whom it is proved to the satisfaction of the Judge in Lunacy that such person is through mental infirmity arising from disease or age incapable of managing his affairs.".

In Halsbury's Statutes (2nd Edition) Vol. 17, there is an editorial note to s. 116 which reads in part:-

"The Lunacy Act 1908 ............. completely changed the procedure for obtaining control of the estates of persons of unsound mind. That section confers upon receivers any powers which could be exercised by a committee of the estate after inquisition. Consequently procedure by inquisition with a view to such an appointment is now very rare ..... and the usual practice is to apply for the appointment of a receiver in any of the cases specified in sub-s. (1) of this section."

In the Mental Health Act 1959 'Mental disorder' is defined in s. 4 as :-

"................. mental illness .............................. and any other disorder or disability of mind."

Section 101 reads :-

"101.

The functions of the judge under this Part of the Act shall be exercisable when after considering medical evidence, he is satisfied that a person is incapable, by reason of mental disorder, of managing and administering his property and affairs; and a person as to whom the judge is so satisfied is in this Part of this Act referred to as a patient."

Section 105 reads, in part:-

"105.

The judge may by order appoint as receiver for a patient a person specified in the order or the holder for the time being of an office so specified; ....................................................".

10. Clearly, the provisions of the Mental Health Act 1959 were "substituted" for the provisions of the Lunacy Acts; and s. 105 of the 1959 Act confers on English judges jurisdiction to appoint a receiver in circumstances previously envisaged by s. 116 of the Lunacy Act 1890 as read with s. 1 of the Lunacy Act 1908 and various other provisions.

11. Turning now to the Mental Health Ordinance. The preamble reads:-

"To amend and consolidate the law relating to mental disorder and its treatment and to make provision for the reception, detention and treatment of persons of unsound mind".

The expressions 'mental disorder and 'person of unsound mind' are not defined in the Ordinance. On the other hand, 'mentally disordered person' is defined to mean a person who (for various specified reasons) "should be placed and kept under control". Under s. 7 the court may order an inquiry to determine whether a person alleged to be a mentally disordered person is a person of unsound mind and incapable of managing himself and his affairs. If the court finds that the person alleged to be a mentally disordered person is of unsound mind and incapable of managing himself and his affairs, it may appoint a committee of the person and estate of such person; and if it finds that the person alleged to be a mentally disordered person is incapable of managing his affairs but is not dangerous to himself or to others, the court may appoint a committee of his estate without appointing a committee of his person.

12. Therefore, in order to set in motion the procedure for the appointment of a committee under the Ordinance, it is necessary that there should be an allegation that the person concerned is a mentally disordered person, that is to say an allegation that the person, for one reason or another, should be placed and kept under control. The court then has jurisdiction to hold an inquiry; and if it finds that the person is not dangerous to himself or to others, but is incapable of managing his affairs, it may then appoint a committee of his estate.

13. The procedure seems to be singularly inappropriate for the case of Shang Kiang Yuen. The medical affidavit evidence (which is not challenged by the second applicants) does not suggest that his condition is such that he should be 'placed and kept under control' or that he is 'dangerous to himself or to others'. He is simply an old man; and the physical condition of his arteries has deteriorated with advancing age. He has had one stroke, that is to say the blood vessels in his head have broken and there has been haemorrhage into the brain substance. One can readily imagine the effect of all this not only on his judgment, but on his ability to perceive. Obviously he has very little idea of what is going on around him.

14. The expression ' unsound mind' is no doubt wide enough to cover a situation of this kind. But the first applicants object (and I think rightly so) to have to allege in an application under s. 7 of the Mental Health Ordinance that Shang Kiang Yuen is a person who should be placed and kept under control, and then to have to set about proving that this is not so in order to obtain a finding by this Court that he is incapable of managing his affairs, but is not dangerous to himself or to others - a state of affairs which is not disputed by any of the applicants and which seems to me to be obvious now. Apart from that, to many people, the expression 'person of unsound mind' implies that the person's brain may be healthy enough in a ...(illegible) but that his mind is ...(illegible) in some way and that he requires treatment in a mental hospital. The whole procedure as set out in ss. 7-11 seems to be quite inappropriate for the case on hand.

15. It is rather surprising that in 1960, the Hong Kong legislature should have decided to adopt the old inquisition procedure with a view to the appointment of a committee for the management of the estate of a person suffering from any and every kind of mental disability; and, if the intention was that this Court should no longer have jurisdiction under s.8(2) of the Supreme Court Ordinance, it is surprising that the Ordinance does not contain some simple form of procedure for the appointment of a receiver for the estate of an old man who has had a stroke. Furthermore, if the intention was to transfer all jurisdiction to the Ordinance, I do not understand why s. 8(2) was not expressly repealed in 1960, or at least when the Botelho Edition of the Laws was published in 1966.

16. I am unable to accept the submission that s. 8(2) has been impliedly repealed. There is no inconsistency or repugnance between that section and the Mental Health Ordinance. Indeed, there is a great deal to be said in support of the view that the two enactments are complementary to one another; and, even if there is a certain amount of 'overlapping', that does not entitle the court to hold that there is a repeal by implication.

17. It seems to me that whatever the intention of the legislature may have been in 1960, in 1966 the intention was that this Court should continue to have jurisdiction under s. 8(2). If I were to hold otherwise, it would be tantamount to saying that in 1966 the legislature went through the motions of enacting, or re-enacting, a provision which they intended to be, virtually "a dead letter".

18. The only question is: what is the nature of the jurisdiction conferred by s. 8(2) today? In particular, when it comes to the appointment of a receiver, does a judge in Hong Kong make the order under the Lunacy Acts or under the Mental Health Act 1959?

19. In my view, judges in Hong Kong today do not have any jurisdiction to appoint a receiver under the Lunacy Acts because those Acts are not in force either in England or in Hong Kong. The jurisdiction of the judges in Hong Kong is defined by reference to the jurisdiction which may be exercised by the judges in England under those Acts; and the judges in England may not exercise jurisdiction today under these Acts. On the other hand, as I have said, when s. 8(2) was re-enacted in 1966, the legislature presumably intended it to confer jurisdiction upon the judges of this Court; and, in my view, s. 8(2), if read with s. 77 of Cap. I, is apt to give effect to that intention. There is no doubt that in England the Mental Health Act 1959 was "substituted" for the Lunacy Acts; and judges in England today may exercise jurisdiction under the 1959 Act. The effect of s. 77 of Cap. I is that for the words "Lunacy & Mental Treatment Acts 1890-1930" in s. 8(2) of Cap. 4, this Court now reads "Mental Health Act 1959".

20. For the above reasons, I hold that the application has been properly made under s. 8(2) of Cap. 4 and that I have jurisdiction to appoint a receiver under s. 105 of the Mental Health Act 1959.

21. I feel I ought to say that, since reaching the above decision, I have looked at the 'Objects and Reasons' annexed to the Mental Health Bill which was placed before the legislature in 1960. Paragraph I reads:-

"The object of this Bill is to replace the Mental Hospitals Ordinance Cap. 136 with a comprehensive Ordinance dealing with all aspects of the detention, custody, care and treatment of mentally disordered persons and the management of their property."

Paragraph 4 deals with the object of enacting Part II. It reads:-

"Part II - Proceedings in Inquiries into Mental Disorders-makes detailed provision for the jurisdiction of the Supreme Court in relation to the management of the person and property of a mentally disordered person. This jurisdiction is at present conferred by sub-section 2 of section 8 of the Supreme Court Ordinance Cap. 4 by reference to the corresponding jurisdiction of the Supreme Court in England."

Attached to the Objects and Reasons there is a Table of Comparison showing the legislation which the draftsman had considered in preparing the Bill. It appears that certain sections were inspired by the Mental Health Act 1959, and that others were inspired by the Singapore Mental Disorder & Treatment Ordinance 1952. Sections 7-11 are based on certain sections in the Singapore Ordinance; and in the Table of Comparison there is a note opposite to those sections which reads:-

"of "(i.e. compare)" Part VIII of the Mental Health Act 1959".

Part VIII consists of ss. 100-121; and the above note appears to indicate that the draftsman had considered the provisions of ss. 100-121 of the English Act and had rejected them in favour of the Singapore provisions.

22. A court does not, of course, take account of anything said in the Objects and Reasons annexed to a Bill in order to assist it in deciding what the legislature intended. Nevertheless, it seems abundantly clear that the intention of the person who drafted the Mental Health Bill was that the jurisdiction hitherto exercised under s. 8(2) of Cap. 4 should be transferred to the new Ordinance. All I can say is that, if this was his intention, the legislature has not given effect to it; and it is perhaps fortunate that this is so.

 

 

	(W.A. Blair-Kerr)
	Puisne Judge.

 

16th April, 1968.

 

Representation:

-referred to as the 1st applicants.

J.D.M. Donnelly (Brutton & Co.) for Shang Wai Kwang & Shang Ray Ziang-referred to as the 2nd applicants