CHAN SAI LUN, HENRY v. CHAN WAI WAH, LILY-ANN

CACV000205C/1998

CACV 143 & 205/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 143 & 205 OF 1998

(ON APPEAL FROM HCA P2 OF 1993)

____________________

BETWEEN
	CHAN SAI LUN, HENRY	Plaintiff
	AND
	CHAN WAI WAH, LILY-ANN	2nd Defendant

____________________

Coram: Hon Ribeiro JA in Chambers

Date of Hearing: 26 May 2000

Date of Judgment: 26 May 2000

 

_________________

J U D G M E N T

_________________

 

Ribeiro JA:

1. There is before me a summons taken out by the 2nd defendant, who I shall call simply "the defendant" as the 1st defendant is no longer a party, seeking a stay of execution of an order which I made on 20 March of this year, that she provide security for the costs of pending appeals against the judgment of Barnett J in this matter in the total sum of $400,000.

2. The defendant is absent. The Court's diary is extremely full today and the matter was listed at 9.30 am. I allowed her a grace period of some 5 or 7 minutes before I came into Court.

3. Mr Cheung has made an application that the summons be dismissed.

4. The order which I made on 20 March was not to take effect until the decision of the Master in relation to the defendant's appeal against the refusal of legal aid, then to be heard on 12 April 2000, was known. That legal aid appeal was not in fact heard on 12 April, but was eventually dismissed on 15 May 2000.

5. I was told that the defendant has lodged an appeal against my order of 20 March. That is of no concern to me today.

6. The summons, apart from seeking a stay of execution, asks in the alternative that the time for providing security be extended until after the hearing of the appeal. This adds nothing to the application for a stay. The other paragraphs in the summons deal with incidental matters.

7. My order of 20 March automatically takes effect after the Master's dismissal of the legal aid appeal without the parties having to apply for any further order. Therefore, unless the defendant provides security as ordered within 14 days after 15 May 2000, the appeal will stand dismissed without further order and with costs of such appeals to be taxed and paid by her to the plaintiff.

8. A few minutes before entering the Court, I received a fax from the Legal Aid Department indicating that a further application for legal aid has been made by the defendant in this matter. I assume that it is made in relation to the appeal lodged against my order. Papers have not yet been served on the plaintiff in relation to that application.

9. Under s.15(4) of the Legal Aid Ordinance, Cap. 91, the court has a discretion to order that the statutory stay of the proceedings not apply. In my judgment, the new legal aid application is plainly a delaying tactic and has no merit whatsoever given that the Master has already dismissed the outstanding appeal in relation to the refusal of the Director to provide legal aid. I therefore exercise my discretion to order that there be no stay under the Legal Aid Ordinance.

10. Accordingly, it appears to me that the defendant has provided no basis whatsoever for disturbing the order which I made on 20 March and the summons which is being heard today must be dismissed with costs.

 

 

 

Representation:

Mr Anthony Cheung instructed by Messrs Wai & Co. for the Plaintiff

Miss Chan Wai Wah, Lily-Ann, 2nd Defendant in person (absent)

CACV000205A/1998

CACV 143 & 205/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 143 & 205 OF 1998

(ON APPEAL FROM HCAP 2 OF 1993)

____________________

BETWEEN
	CHAN SAI LUN, HENRY	Plaintiff
	AND
	CHAN WAI WAH, LILY-ANN	2nd Defendant

____________________

Coram: Hon Ribeiro JA in Chambers

Date of Hearing: 15 March 2000

Date of Judgment: 20 March 2000

 

_________________

J U D G M E N T

_________________

 

Ribeiro JA :-

1. On 1 May 1998, Barnett J handed down his judgment after a trial that had lasted a total of 28 days spanning the period from 20 October 1997 to 17 April 1998. That trial concerned the validity of the will of the 2nd defendant's father. She had challenged its validity on the ground that her father had lacked testamentary capacity at the time when it was made. After a detailed and extensive examination of the factual and expert evidence, Barnett J held that the testator did have the necessary capacity and that the will was valid. He granted the plaintiff probate, whereupon the whole of the testator's estate passed to the plaintiff.

2. The 2nd defendant wishes to appeal against that decision. She had been on legal aid for the trial but, after the judge's decision, the 2nd defendant was refused further legal aid. The appeals have now been set down for hearing and on 14 February, the plaintiff issued a summons seeking security for the costs of the 2nd defendant's pending appeals. Security in the sum of $424,943.00 is sought and in default, an order staying the appeals is sought.

3. The plaintiff, who is the 2nd defendant's brother, has filed an affirmation in support of this application. He deposes to her impecuniosity, based in part on her repeated indications that she has no money. He states his belief that she would be unable to pay the costs of the appeals if she should fail to overturn Barnett J's decision. The sum of security sought is based on a skeleton bill of costs prepared by a law draftsman, showing that since 15 June 1998, about $40,000 by way of costs and disbursements have been incurred and that future costs of the appeals are estimated to be in excess of $385,000.

4. By O 59 r 10(5), the Court of Appeal "may, in special circumstances, order that such security shall be given for the costs of an appeal as may be just."

5. The 2nd defendant does not dispute her inability to pay the plaintiff's costs out of means available to her if she were to lose her appeals. She points, however, to her appeal to the Master against the refusal of legal aid due to be heard on 12 April 2000 and expresses the hope that she will be granted legal aid for the purposes of the appeals. While the fact that an appellant is legally-aided would be relevant to the issue of security, I have to approach the present case, at least initially, on the footing that the 2nd defendant is not legally-aided since that is her present status and it is, to say the least, unclear that her appeal to the Master will succeed. I return to the question of the pending appeal against the refusal of legal aid at the end of this judgment.

6. As the White Book indicates, cases involving an appellant who would be unable, through impecuniosity, to pay the costs of the appeal constitute an established category of "special circumstances", so that the settled practice is for the court to require such appellants to provide security for costs. The court generally bears it in mind that the appellant has already had the issues investigated and determined at the trial and considers it unfair on the respondent to make him face an appeal knowing that he will be uncompensated for his costs if the appellant fails.

7. The court, however, may in some circumstances decline to order security notwithstanding the appellant's impecuniosity where, for instance, it is satisfied that the appeal raises real and substantial issues and that the appellant bears a sufficiently good chance of success to justify exposing the respondent to the injustice of having to bear his own costs even if he successfully resists the appeal.

8. I have given this case anxious consideration as I am all too well aware of the sense of grievance that the 2nd defendant may feel if she is effectively denied a hearing because of her inability to provide security for costs.

9. I have re-read the 55 page judgment delivered by Barnett J with a view to determining whether the 2nd defendant's appeal can be said to bear a sufficiently good chance of success to justify exposing the respondent to the risk of wholly irrecoverable costs. If such good chances exist, an award of security could reasonably be declined. However, if the court's assessment is that such chances cannot be said to exist, an order of security, even if leading to a stay of the appeal because of the appellant's impecuniosity, will in the long run probably not constitute a denial of justice.

10. Barnett J's judgment describes the circumstances of the making of the will and the testator's death. These gave rise to four issues facing the court at the start of the trial, these were (i) whether the will was in fact forged; (ii) whether the testator lacked testamentary capacity, being of unsound mind at the time of signing the will; (iii) whether he had signed under the undue influence of the plaintiff and the 2nd defendant's elder sister; and (iv) whether the testator signed the will without knowing its effect.

11. The allegation of undue influence was withdrawn at the trial and the judge considered the evidence negativing forgery to be so overwhelming that he did not consider that a live issue. The judge considered that the remaining issues (ii) and (iv) were in practice the same issue, and that at their heart lay the question whether the drugs haloperidol and mianserin, which had been administered to the testator on the day when he made his will, had taken effect so as to deprive him of the requisite testamentary capacity and knowledge and approval of the contents of the will.

12. The judge considered the applicable law in some detail and identified with some care the legal test to be applied. He then considered the evidence in great detail.

13. He closely investigated the relationship between the testator on the one hand and his various children on the other. He considered in detail, the notes and diagnoses made by the doctors in the period leading up to the testator's death. The evidence of Dr Ip, who examined the testator at the time he made the will, was subjected to particularly minute scrutiny. He then gave detailed consideration to the psychiatric and pharmacological evidence from opposing experts and to the learned texts cited by such witnesses.

14. On the basis of this painstaking analysis of the evidence, Barnett J stated his conclusion as follows:-

"I conclude that immediately prior to execution of his will, Mr Chan [the testator] was seen by an experienced psychiatrist who carried out a sufficiently thorough examination to be able properly to find that Mr Chan had testamentary capacity. Although I would be happy to give judgment on that basis alone, I believe it is appropriate to add that Dr Ip's finding is supported by the evidence of Henry, Sara and Chi-kin of Mr Chan's condition as observed by lay people before, at the time of, and after the making of the will. While they certainly had interests of their own to serve, their factual evidence was not really challenged and rightly so the finding is also supported by the evidence of Mr Chung who was certainly a disinterested party and who was impressed by Mr Chan's firmness. And, not least, neither Dr Ng nor Dr Sham had any concerns about Mr Chan's mental state. ....... Finally, the substance of the will is entirely rational given the history. ......."

I have sought to summarise Barnett J's judgment in some detail to make it clear that it turned very largely on questions of fact and credibility, matters which are properly left to the determination of the judge who saw the witnesses giving evidence and was able to assess their credibility at first hand. Nothing in the detailed judgment suggests that Barnett J misapprehended the evidence or drew the wrong inferences, or otherwise made any error in reaching his conclusion.

15. In the 2nd defendant's Notice of Appeal filed on 15 June 1998 (which raises the substantive grounds relied on), the judge is criticised, inter alia, for not making certain findings (e.g., that suspicious circumstances attached to the preparation and execution of the will) and for not giving sufficient weight to particular circumstances and, in some cases, for making findings without the support of evidence. He is particularly attacked for being too dismissive of the forgery allegation. The 2nd defendant therefore seeks to challenge the findings of fact which the judge made on the evidence. Such challenges are only entertained in limited circumstances and can only rarely succeed on appeal.

16. At the hearing before me, the 2nd defendant sought to suggest that the Notice of Appeal in question (which was settled by her former solicitors) was incomplete and that there were additional grounds that she would wish to rely on. She has had, of course, over 20 months to apply to amend that Notice but has not done so. Giving her every latitude by reason of her status as a party in person, I offered her the opportunity of telling me what such additional grounds might be. She had great difficulty responding and obviously did not have any real idea of any possible additional grounds. She expounded various theories in support of the contention that the will is a forgery and criticised the Judge for having accepted the evidence of the persons who witnessed its execution, contending that he should have found that they were lying on oath. Forgery is of course a matter that the Judge did consider in his judgment and an attempt to question his rejection of forgery is already to be found in the existing Notice of Appeal. The 2nd defendant also made various unconnected suggestions as to possible technical or formal objections to the will and to the Judge's order.

17. Having listened carefully to the 2nd defendant's submissions, I have come to the view that no omissions to the Notice of Appeal have been identified which may be material to the question which I have to decide, namely, as to whether to order security.

18. I have come to the conclusion, solely for the purposes of determining whether security for the costs of the appeals should be ordered, that the appeals do not sufficiently raise substantial issues with a significant chance of success to justify departing from the usual practice of requiring security to be provided. I have accordingly decided, subject to what I say about legal aid below, that the 2nd defendant should be ordered to provide security in the usual way. While this could well mean that the appellant will be unable to proceed with the appeals, in the light of my assessment of the ultimate prospects success of the appeals and in the light of the established principles, I do not consider that such a result would constitute a denial of justice.

19. As indicated above, there is a pending appeal against a refusal of legal aid to be heard on 12 April. If legal aid should be granted, such grant would be a factor that should be taken into account in the exercise of my discretion in deciding whether to order security. I therefore propose to make an order for security which is not to take effect until the Master's decision in the appeal against refusal of legal aid due to be heard on 12 April is known and, in the event that security should be granted (a matter upon which I express no opinion), that the order should not take effect until after the matter is restored before me in Chambers for further consideration. In the event that the Master dismisses the said appeal, my order for security will become unconditional without further order.

20. Given the large volume of materials that would have to be mastered for the purposes of an appeal, I do not consider the estimate of costs provided by the plaintiff in the skeleton bill of costs to be unrealistic. I will however round the figure sought down to $400,000 and make the following orders, namely, that:-

(1) Security for the costs of the pending appeals (CACV 143/1998 and CACV 205/1998) in the total sum of $400,000 (whether by payment of such sum into court or in some other form acceptable to the court) be provided by the 2nd defendant within 14 days from the date that this order is to take effect as provided for by paragraph 4 below.

(2) Until such security is provided, the appeals be stayed.

(3) In default of such security being provided after this order takes effect and within the time limited as aforesaid, the said appeals do stand dismissed without further order, with costs of such appeals to be taxed and paid by the 2nd defendant to the plaintiff.

(4) This order shall not take effect until the decision of the Master in relation to the 2nd defendant's appeal against refusal of legal aid due to be heard on 12 April 2000 is known and shall only take effect subject to the following provisions of this order namely:-

(a) In the event that the Master should make an order dismissing the said pending appeal against refusal of legal aid, this order shall take effect from the date of the Master's order in accordance with paragraph 1 above and without the parties having to apply for any further order.

(b) In the event that the Master should allow the said pending appeal against refusal of legal aid and should in consequence grant legal aid to the 2nd defendant in relation to CACV 143/1998 and/or CACV 205/1998, this order shall not take effect until after the plaintiff has restored this application for security for costs before this court for further consideration and subject to such further order as this court may thereupon make.

(5) By way of an order nisi and subject to the provisions of Order 42 rule 5B(6) of the Rules of the High Court, the costs of this application for security for costs be costs in the pending appeals in CACV 143/1998 and CACV 205/1998.

 

 

 

Representation:

Mr Anthony Cheung instructed by Messrs Wai & Co. for the Plaintiff

Miss Chan Wai Wah, Lily-Ann, Defendant in person

CACV000205B/1998

CACV 143 & 205/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 143 & 205 OF 1998

(ON APPEAL FROM HCA P2 OF 1993)

____________________

BETWEEN
	CHAN SAI LUN, HENRY	Plaintiff
	AND
	CHAN WAI WAH, LILY-ANN	2nd Defendant

____________________

Coram: Hon Mayo VP and Ribeiro JA in Court

Date of Hearing: 24 February 2000

Date of Judgment: 24 February 2000

 

_________________

J U D G M E N T

_________________

 

Hon Ribeiro JA:

1. On 18 January 2000 for the reasons which have been set out in writing, this Court made certain orders in relation to two outstanding appeals (CACV Nos. 143 and 205 of 1998). Those appeals were lodged before this Court by the applicant, Miss Lily Chan, and have recently been set down for hearing.

2. In our order of 18 January, we did three things. First, we ordered the removal of a restriction which had previously been imposed on the applicant taking further part in the proceedings unless and until a guardian ad litem was appointed to act on her behalf. Secondly, we dismissed the applicant's renewed application for a stay of proceedings by the respondent to enforce Barnett J's judgment in his favour together with various associated interlocutory orders sought. Thirdly, we directed that the applicant have leave to set down the pending appeals to be heard together, with one day reserved, provided that they were set down within 28 days of the date when our judgment was handed down.

3. On 8 February the applicant filed a notice setting down the appeals and at the same time she gave notice that she intended to apply for leave to appeal to the Court of Final Appeal from the judgment of this Court which I have described.

4. She has today informed us that she wishes to appeal against our refusal of a stay of the proceedings which I have mentioned. I will consider the Motion for leave to appeal before considering the status of a summons which the applicant has also issued for certain interlocutory stays pending the determination of the proposed appeal to the Court of Final Appeal.

5. In my judgment, the orders sought to be appealed from are undoubtedly interlocutory in character and there is no appeal as of right to the Court of Final Appeal. By section 22 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, leave is only to be granted in such cases if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision. It must be understood that the Court of Final Appeal does not entertain interlocutory appeals unless they have this character of great general or public importance, however important the matter may appear to the applicant in a particular case.

6. There is, in my judgment, as a matter of law, plainly no basis whatsoever for suggesting that the orders made by this Court on 18 January, raise any question of such importance.

7. Accordingly, in my view, the application for leave to appeal to the Court of Final Appeal must be dismissed. It follows that the summons seeking interim measures pending such appeal must also be dismissed.

 

Hon Mayo VP:

8. I agree entirely. No question has been formulated or can be formulated which could meet the requirements of s.22(1)(b) of the Court of Final Appeal Ordinance, Cap. 484. That being the case this motion is dismissed.

 

 

 

Representation:

Mr Anthony Cheung instructed by Messrs Wai & Co. for the Plaintiff

Miss Chan Wai Wah, Lily-Ann, Defendant in person

CACV000205/1998

CACV 143 & 205/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS 143 & 205 OF 1998

(ON APPEAL FROM HCAP 2/1993)

____________

BETWEEN
	CHAN SAI LUN, HENRY	Plaintiff/ Respondent
	AND
	CHAN WAI WAH, LILY-ANN	2nd Defendant/ Appellant

____________

Coram: Hon Mayo JA and Ribeiro J in Court

Date of Hearing: 11 January 2000

Date of Judgment: 18 January 2000

 

_______________

J U D G M E N T

_______________

 

Hon Mayo JA and Ribeiro J :

1. This is the judgment of the Court.

The Probate Action

2. In 1990, Chan Kong-chung ("Mr Chan") died. He was survived by four children, including Henry Chan Sai Lun ("Henry"), Lily-Ann Chan Wai Wah ("Lily") and Sylvester Chan Sai Lung ("Sylvester"). A will appearing to have been made by Mr Chan and leaving his entire estate to Henry, became the subject matter of a Probate Action commenced in 1993 (HCAP 2/1993). Henry was the Plaintiff and the Defendants were Lily and Sylvester. Sylvester, however, dropped out at an early stage so that the Action proceeded as between Henry and Lily. The central issue at the trial was whether, at the time when the will was executed, Mr Chan possessed the necessary testamentary capacity since he was then undoubtedly very frail and had been taking medication which might have affected such testamentary capacity.

3. On 1 May 1998, after a trial which lasted a total of 28 days, Barnett J found that Mr Chan did have the necessary testamentary capacity and that his will was accordingly valid. Barnett J therefore granted Henry probate and, in accordance with the terms of the will, the whole of the testator's estate passed to Henry.

4. Lily applied for execution of Barnett J's judgment and orders, in particular, the grant of probate to Henry, to be stayed pending the hearing of her intended appeal. On 22 May 1998, Barnett J refused that application.

5. At the trial, Lily had been legally aided. However, after the judgment, she was refused further legal aid, her application having been turned down by the Director of Legal Aid on 26 May 1998. Thereafter, she has acted in person and appeared in person at the hearing before us. Henry appeared as the Respondent, represented by Mr Anthony P W Cheung of counsel, on the instructions of Messrs Wai & Co.

The Order of Godfrey JA

6. On 2nd June 1998, notwithstanding Barnett J's earlier refusal, Lily filed a summons in which she renewed her attempt to obtain a stay of execution. For reasons that are not clear, this application was apparently treated as an originating summons and given an HCMP number (HCMP 2433/1998) although the parties named on the summons were the same as those in the Probate Action.

7. In support of her renewed stay application, Lily filed two affidavits. The first, dated 10 June 1998, dealt with the need for a stay, referring to Henry's intention to dispose of the assets in the light of Barnett J's judgment. The second affidavit had been made by Lily with a view to placing it before the Practice Master on 9 June 1998, in support of her application for certain court fees to be waived on the grounds of poverty. It went into some detail as to her allegedly impoverished condition but was quite irrelevant to her stay application.

8. The summons issued on 2 June 1998 came on for hearing before Godfrey JA on 11 June. It appears from the Order eventually made, that it was treated as an application before a single judge of the Court of Appeal (notwithstanding its treatment by the Registry as an originating summons). Selina Lau of counsel, instructed by Wai & Co on Henry's behalf, was present. However, Lily did not appear. The file note of the hearing records that Miss Lau invited the court to dismiss the application for a stay of execution and asked for costs. The note also states: "Court draws counsel's attention to O 80 r 2(8) of the White Book".

9. The Order which Godfrey JA made upon that hearing reads, so far as material, as follows: -

"AND UPON the Court being satisfied on the evidence filed on this application that the 2nd Defendant ....... is a person who, by reason of mental disorder within the meaning of the Mental Health Act 1983, is incapable of managing and administering her property and affairs

IT IS HEREBY Ordered and Directed:

1. That the said application [i.e., for a stay of execution pending appeal] be dismissed and of its own motion and in order to prevent further abuse of its process, the 2nd Defendant be debarred from taking any further part in the proceedings before this court unless and until a guardian ad litem is added to act on her behalf.

2. That the costs of the Plaintiff of the said application are to be taxed and paid by the 2nd Defendant to the Plaintiff but that this order for costs be not proceeded with until after a guardian ad litem has been added to act on behalf of the 2nd Defendant as aforesaid."

10. No written reasons were given. It is not clear what, if any, evidence was before Godfrey JA apart from the two affidavits mentioned above.

11. On 15 June 1998, Lily lodged a Notice of Appeal (CACV 143/1998) against Barnett J's judgment and on 18 June, she wrote to Godfrey JA's clerk denying that she was suffering from any mental disorder and explaining that she had been unable to attend because she had been physically ill on 11 June. On 23 June, Godfrey JA's clerk wrote stating that since the Order of 11 June had been sealed, the Judge was not prepared to consider any correspondence with Lily. On 21 August, she issued a further Notice of Appeal (CACV 205/1998).

12. About a year later, Lily revived her application. On 29 July 1999 she wrote to the Court again denying mental illness and seeking to proceed with her stay application pending the hearing of her two appeals. At the end of August 1999, Henry issued proceedings (in HCA 14052/1999) seeking to recover possession of Flat C at No 94 Robinson Road, 1st Floor, which had formed part of the estate and which was (and still is) occupied by Lily.

13. On 28 October 1999, Lily issued a fresh summons to a single judge of the Court of Appeal seeking to stay Barnett J's judgment and orders pending appeal. On 1 November 1999, without any hearing, Keith JA struck out her application on the ground that a guardian ad litem had not been appointed as required by Godfrey JA's Order of 11 June 1998.

This Appeal

14. What brings the matter before this Court is a Notice of Appeal filed by Lily on 18 November 1999 in which she seeks to set aside the Orders of Keith JA dated 1 November 1999 and Godfrey JA dated 11 June 1998 as well as a stay of execution of Barnett J's judgment and orders of 1 May 1998, together with various orders designed to prevent dealings with the assets of the estate pending determination of the Appeals.

15. We have decided to hear her because, after reviewing the relevant files, we entertained serious doubts as to whether there was any jurisdiction to make the Order debarring Lily from further participation in the proceedings without a guardian ad litem ("the debarring Order") or any evidence to support its making.

16. At the hearing, we asked Mr Cheung whether he sought to support the debarring Order and if so, invited him to address us on the grounds upon which it ought to be upheld. He indicated that he was not able to advance any grounds of his own to support the Order, in the absence of any reasons given by the Judge. We accordingly indicated that we would set aside the debarring Order and now give our reasons for so doing.

The debarring Order

17. Godfrey JA made the debarring Order of his own motion, apparently on two possible grounds. The first was that he was "satisfied on the evidence filed on this application that the 2nd Defendant ....... is a person who, by reason of mental disorder within the meaning of the Mental Health Act 1983, is incapable of managing and administering her property and affairs". The second was that by debarring her from being heard "in the proceedings before this court unless and until a guardian ad litem" was added, the Court would "prevent further abuse of its process". We do not consider that either of these grounds can be upheld.

18. The Mental Health Act 1983 was invoked as the basis for finding Lily to be mentally disordered and incapable of dealing with her own affairs. However, in June 1998, that Act no longer applied in Hong Kong.

19. It is true that under Part II of the Mental Health Ordinance (Cap 136) ("the MHO"), and in particular sections 10A and 10B, the Court is given relevant powers. Thus, under section 10B(1)(i), the Court is given power to make such orders and give such directions and authorities as it thinks fit, inter alia for the conduct of legal proceedings in the name of the mentally incapacitated person or on that person's behalf.

20. However, under the MHO, a "mentally incapacitated person" means "for the purposes of Part II, a person who is incapable, by reason of mental incapacity, of managing and administering his property and affairs". Such a status is attributed to a person by determination of the Court (under s 10(1)) but only at an inquiry initiated under section 7 and "after receiving such reports and hearing such evidence and arguments as it may think fit". A section 7 inquiry is commenced on application by a relative of the person alleged to be mentally incapacitated or otherwise on application by the Director of Social Welfare, the Official Solicitor or a guardian of the person appointed under the Ordinance. By section 8, notice of such inquiry must be served on the person in question or, if service would be ineffectual, notified by substituted service ordered by the Court. With a view to deciding whether the person in question is a mentally incapacitated person, the Court may, under section 9, direct that person to be examined with a view to obtaining a report as to his mental capacity. Such safeguards obviously exist to ensure that the Court's power to take the administration of a person's property and affairs out of that person's hands on grounds of mental incapacity is properly exercised.

21. In the present case, the debarring Order, based on a finding that Lily was a person suffering from a mental disorder so as to be unable to manage her own affairs, was made without any relevant person applying for an inquiry, without any notice being given of any inquiry so that interested persons (not least Lily herself) could be heard, without any expert examination of Lily's mental capacity, apparently without any evidence other than the affidavits mentioned and without Lily even being present. Plainly, the MHO procedures were not followed and the MHO therefore cannot provide any foundation for the debarring Order.

22. As indicated above, it appears that Godfrey JA may have relied on the provisions of Order 80 as set out in the White Book as the basis for the debarring Order. In our Rules of the High Court, Order 80 adopts the phrase "mentally incapacitated person" and its definition appearing in the MHO. It defines a "person under disability" as "a person who is ....... a mentally incapacitated person". It follows that Order 80 operates to debar a person from bringing or participating in legal proceedings without a next friend or guardian ad litem on grounds of mental incapacity only where such person has previously been determined to be a mentally incapacitated person under the abovementioned MHO procedures. Order 80 does not operate separately from the MHO, nor does it provide a basis for justifying the debarring Order in the present case.

23. It follows, in our judgment, that the debarring Order cannot be justified on any mental incapacity ground.

24. The Court has an inherent jurisdiction to prevent abuse of its process. It normally does so by striking out summarily any proceedings which are an abuse.

25. However, to go further and to debar a citizen from approaching the seat of justice on the grounds of prior abuse of the court's process is a draconian measure which can only be ordered if the stringent conditions of section 27 of the High Court Ordinance are met.

26. That section provides that vexatious litigants can be barred, but only on application by the Secretary for Justice who has to satisfy the court that such person has "habitually and persistently and without any reasonable ground instituted vexatious legal proceedings". The order is only made "after hearing that person or giving him an opportunity of being heard" and then, he is still allowed to start or continue with legal proceedings with the leave of the court (which leave is given if the court is satisfied that the proceedings are not an abuse of the process and that there is prima facie ground for the proceedings). Such an order requires to be published in the Gazette.

27. Plainly, the debarring Order, although it mentions a desire to avoid future abuse of the court's process, cannot be justified on the basis of section 27. It follows that, in our judgment, it is an Order that cannot be upheld on either of the grounds indicated and must be set aside. Since Keith JA's Order was wholly dependent on the validity of the debarring Order, it too must be set aside.

28. We would add one further comment in this context. If it was open to the Court, pursuant to the MHO, to find that Lily (or any other person) was a mentally incapacitated person requiring to be represented by a guardian ad litem, it would not have been appropriate simply to debar her from further participation in the proceeding unless and until a guardian ad litem was appointed without taking any steps to have one appointed. Ex hypothesi, such persons are incapable of administering their affairs and cannot be expected to make such appointment for themselves.

29. The course that the Court should adopt in such cases (at the inquiry under the MHO) is to appoint the Official Solicitor the guardian ad litem instead of leaving the incapacitated person to his or her own devices. Provision is made for this by the Official Solicitor Ordinance (Cap 416). By section 4, the Official Solicitor's duties include a duty "to act, where so appointed by the Court, as provided in Parts 1 and 2 of Schedule 1". Schedule 1, Pt 1, para 1 lays down a duty "to act as guardian ad litem or next friend to any person under a disability of age or mental capacity, in proceedings before any court." Order 80 rule 3, confers an entitlement on the person so appointed to act as next friend or guardian ad litem.

The other Orders sought

30. At the hearing, we also dismissed Lily's renewed application for a stay and for associated interlocutory orders pending the hearing of the Appeals. We did so because we considered that Barnett J and Godfrey JA were both fully entitled to dismiss the stay application in May and June 1998 respectively. We see no grounds to grant a stay at present.

31. We also directed that Lily have leave to set down the pending Appeals (in CACV 143 and 205 of 1998) to be heard together provided that such Appeals be set down within 28 days of the date when this Judgment is handed down. As we indicated to her, the Appeals will automatically stand dismissed if they are not set down within this period. We direct that one day be reserved for the hearing of the aforesaid Appeals.

 

 

 

Representation:

Mr Anthony P W Cheung, instructed by Messrs Wai & Co., for the Plaintiff/Respondent

Miss Chan Wai Wah, Lily-Ann, Defendant/Appellant in person