RE TCM

HCMH 34/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MENTAL HEALTH CASE NO. 34 OF 2008

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REASONS FOR DECISION

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1.   Pursuant to the judgment of this court on 20 July 2009, the case was referred to, inter alias, the Law Society for investigation. For that purpose, the Law Society requested some information from the solicitors firm [“the Firm”] previously acted for TCM in the Personal Injuries Action.

2.   By a letter dated 31 July 2009, the Firm sought leave from this court for copy of the reports of the Official Solicitor and the solicitor for the interim receiver to be released to them. At the direction of this court, the Firm prepared a summons (which was treated as issued at the hearing) and the matter was heard on 19 August 2009.

3.   The Committee and the Official Solicitor objected to the release of the reports.

4.   At the end of the hearing, this court dismissed the application and ordered the Firm to pay the costs of the Committee and the Official Solicitor in this application and such costs were fixed by the court pursuant to Order 62 Rule 9(4)(b).

5.   The following are my reasons for dismissing the application.

6.   At the outset, it has to be remembered that this court is exercising its Part II jurisdiction under the Mental Health Ordinance. The reports were prepared at the directions of this court in the course of the inquiry and they contained recommendations and opinions offered to this court by the Official Solicitor and the solicitor for the interim receiver on a confidential basis. The court took into account of their views in coming to its conclusion about the steps that should be taken for the benefit of TCM and how his affairs should be managed.

7.   One of the steps that this court directed the Committee to take is to apply for legal aid in respect of legal proceedings for recovery of $477,500. The Firm is a potential defendant in such proceedings.

8.   Part II proceedings are not open to the public and materials disclosed to the court for the purpose of such proceedings are confidential and not to be reported without leave. Unauthorized publication of such information constitutes contempt of court, see Section 5(1)(b) of the Judicial Proceedings (Regulation of Reports) Ordinance Cap. 287. In other words, third parties have no right to such information.

9.   In considering whether the Firm’s request should be acceded to, this court must examine it from the angle of what is in the interest of TCM. If the court concludes that the release of the reports to the Firm would be prejudicial to the interest of TCM, it would not accede to the request unless there is very good overriding reason to do so.

10.   Given the conflict of interests between the Firm and TCM, disclosure of such confidential reports is prejudicial to the interest of TCM. Mr Mak, who argued the application on behalf of the Firm, cannot explain how the disclosure would further the interest of TCM as opposed to the interest of the Firm.

11.   I must also stress that this court is not involving itself in the investigatory process of the Law Society. There is therefore no question of this court, having seen the reports, making a decision adverse to the Firm in the investigatory process.

12.   It is up to the Law Society to decide how the investigation should be conducted and whether any disciplinary proceedings should follow after their investigation. At this stage, from the correspondence shown to this court, no decision has been made as to whether disciplinary proceedings would be commenced against the Firm or any member of the Firm. The letter of the Law Society to the Firm only sought information which the Firm should be able to provide based on the records and information in its possession. Mr Mak has not been able to convince this court that the disclosure of the reports to the Firm is necessary for a proper response to be made by the Firm to the Law Society.

13.   A copy of the judgment of this court on 20 July 2009 had been given to the Firm. Based on that, the Firm is aware of the essence of the complaint.

14.   The Firm may seek further particulars from the Law Society if it has a good reason for so doing before responding or afterwards. I have no reason to believe that the Law Society would not give a fair opportunity to the Firm to make representations before an adverse decision is made against the Firm. But all these are matters between the Firm and the Law Society. It is not the business of this court sitting in its Part II jurisdiction to provide assistance to the Firm to defend itself. Nor would this court make any comment about the conduct of the investigation by the Law Society.

15.   Mr Mak’s reliance on Lam Ping Cheung Andrew v The Law Society HCAL 121 of 2006, 22 December 2006 is completely misguided. The reports concerned in that case are the reports prepared by the Conduct Section of the Law Society and the refusal to release the reports is a refusal by the Law Society. It is not a case dealing with the release of confidential information by the court in the exercise of its Part II jurisdiction. As explained above, wholly different considerations apply.

16.   Further, in that case the Law Society was considering whether it should refuse the issue of practicing certificate to the solicitor and the reports were not released when he was asked to make representations concerning his fitness to practice. This is not the situation facing the Firm.

17.   As pointed out in the submissions of the Official Solicitor and Mr Si, the judgment in that case was actually against the disclosure of any reports at a preliminary stage such as the one the Firm is facing with as far as the present investigation is concerned, see paras. 25 to 30 of the judgment.

18.   I do not see any ground for releasing copies of the reports to the Firm.

19.   For all these reasons, the application of the Firm must fail.

20.   As indicated at the hearing, I shall release this Reasons for Decision for circulation.

HCMH 34/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MENTAL HEALTH CASE NO. 34 OF 2008

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J U D G M E N T

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1.  In this Part II application, this court is satisfied that TCM is incapable by reason of his mental incapacity of managing and administering his affairs and an order is made on 15 July 2009 for the appointment of a committee.

2.  There is a disturbing feature in the case.TCM was a victim of a traffic accident in 2000.As a result he sustained head injury and was comatose for more than a month.He had neurosurgery.Thereafter he suffered from cognitive impairment and lost the ability to live independently.He made a personal injuries claim against the driver of the car which hit him in a High Court action in 2003.The action was carried on without any appointment of next friend.Notwithstanding medical evidence suggesting impairment of TCM’s mental faculties the lawyers acting for TCM did not deem it necessary to proceed under Order 80.All along the daughter of TCM liaised with the lawyers.

3.  The action was settled in September 2004.The defendant agreed to pay $1.3 million by way of damages.The defendant also agreed to pay the costs of the plaintiff in the action.Since the Order 80 procedure was not adopted, the settlement was not approved by the court and there was no safeguard in place as to the disposal of the settlement money.

4.  Unfortunately, TCM did not get the full $1.3 million. According to the daughter, a significant part of the compensation was paid to an account designated by the counsel acting for TCM.That came about in circumstances which implicated the counsel (and possibly the solicitor as well) as being involved in a champertous arrangement.The upshot is that out of the $1.3 million, a sum of $477,500 was paid by the daughter under the belief that they were legal expenses.

5.  It is also alleged that the lawyers did not tell TCM nor the daughter that the legal costs were paid by the defendant as part of the settlement.

6.  If these allegations were established against the lawyers, there are serious criminal and disciplinary implications.Not only would the lawyers involved be guilty of champerty, they would probably be guilty of deception as well.Further, the omission to adopt the Order 80 mechanism may arguably constitute negligence on the part of the lawyers.

7.  I need not go into the details in this judgment.Investigations were conducted by the Official Solicitor and the solicitors acting for the interim receiver under the court’s directions.It suffices for me to say from the materials available, there is enough evidence to support a prima facie case that calls for further investigations by various authorities.

8.  I shall therefore refer the matter to the Secretary for Justice, the Bar Association and the Law Society for their respective investigation.I direct that together with this judgment, a copy of the report of the Official Solicitor and the report of the solicitor for the applicants (with the relevant exhibits) be released to these regulatory authorities for their actions.I also grant leave to their representatives to inspect the court file in these proceedings.

9.  As far as the Committee is concerned, I have also directed them to apply for legal aid on behalf of TCM to prepare legal proceedings for recovery of the $477,500.

10.  I shall release a copy of this judgment for circulation.Those acting for accident victims should be aware that the court is vigilant in safeguarding the interests of those under disabilities and arrangements that smack of champerty will be investigated.