RE LYM

HCMH 44/2013

[2024] HKCFI 2299

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MENTAL HEALTH CASE NO. 44 OF 2013

_______________________

_______________________

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REASONS FOR DECISION AND
SUMMARY ASSESSMENT OF COSTS

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A. INTRODUCTION

1.  These proceedings were first commenced in 2013 under Part II of the Mental Health Ordinance, Cap 136 (“MHO”) for a committee to be appointed for the estate of the mentally incapacitated person LYM, one of 9 siblings. The application under Part II was commenced by LYM’s 2^nd elder brother LSWA who was represented by solicitor Ms Christine Yuen (“Ms Yuen”) of Messrs Tse Yuen Ting Wong (“TYTW”). LYM’s younger brother LSHJ was the interested party who intervened in the Part II proceedings and opposed the application by LSWA, and LSHJ offered himself as the committee. LSHJ was represented by solicitor Mr Yaddy Cheung (“Mr Cheung”), then of Messrs Yaddy Cheung & Co. LSHJ had the support of his 5 other siblings, with the remaining sibling at that time said to be uncontactable.

2.  LYM’s siblings eventually arrived at an agreement, and by an order of 7 August 2014, this Court appointed Ms Yeung and Mr Cheung jointly to be the committee for LYM (“Committee”).

3.  By the time of the present hearing before this Court, according to Mr Cheung, some of the LYM’s siblings had passed away, and that at the hearing he represented 4 surviving siblings and Ms Cheung represented 2 of the surviving siblings of LYM, whereas TYTW were solicitors instructed by the Committee for the present hearing.

4.  During the pandemic, on 6 September 2021, the Committee issued a summons (“Summons”) and applied amongst other things for an order that the Committee or alternatively the Director of Social Welfare (“Director”) be appointed as the guardian of LYM under section 59M of the MHO, namely the guardian of the person of LYM.

5.  There were two preliminary issues raised by this Court arising out of the Summons, namely (1) whether the Court has power to appoint the Committee as guardian of the person under section 59M of MHO and (2) notwithstanding the provisions of MHO, whether the Court has inherent jurisdiction to grant a guardianship order to the Committee or any other person not specified in section 59N (1) of MHO as the Court deems fit.

6.  On 3 March 2023, this Court handed down a decision on the preliminary issues raised (“Decision”)[1]. In the Decision, the Court’s answer to Issue (1) is no, and the answer to Issue (2) is yes. The Court will continue to adopt herein the abbreviations in the Decision, unless otherwise indicated.

7.  In paragraph 45 of the Decision, upon deciding that this Court does have inherent jurisdiction to appoint a person not specified in section 59N(1) of MHO to be a guardian of a mentally incapacitated person, this Court then requested the Director to submit a social enquiry report to contain the information set out in section 59P(3) of MHO to be received in evidence for consideration by this Court before deciding whether to appoint a guardian in person for LYM and if so, whether the Committee should be appointed the guardian.

8.  The Social Enquiry Report was duly prepared and submitted by the Director on 29 May 2023 (“SWR”)[2], and a short direction hearing was initially fixed on 3 November 2023. The Director maintained his view that a guardianship order was not necessary for LYM. A guardianship order was not recommended by the social investigation officer. The Director however adopted a neutral stance on whether the Court should appoint a guardian for LYM.

9.  Upon reading the SWR and the Director’s skeleton submissions, this Court decided on 2 November 2023 to vacate the directions hearing on 3 November 2023 and direct instead a substantive hearing to be fixed on 7 May 2024 for this Court to consider the Director’s submissions as to why a guardianship order was not necessary. This Court also directed that LYM be joined as a party to the Summons, and that the Official Solicitor (“OS”) be appointed as the guardian ad litem of LYM at the substantive hearing and to lodge skeleton submissions as to whether it is in the interests and welfare of LYM that LYM should be received into guardianship, and if so, the appropriate person to be appointed.

10.  In OS’s skeleton submissions before this Court, OS took the view that taking into account the interests of the welfare of LYM, she was recommended to be received into guardianship and that if the Court was minded to make a guardianship order, it was OS’s recommendation that the Director should be appointed as public guardian of LYM.

11.  At the resumed hearing on 7 May 2024, the Director initially maintained his views that a guardianship order was not necessary and adopted a neutral stance to whether the Court was to make a guardianship order. However, upon further consideration of the OS’s submissions, the Director agreed to be appointed the guardian of LYM if the Court was minded to make a guardianship order.

12.  Having considered the SWR and all the circumstances of this case, this Court came to the view that LYM should be received into guardianship, and that a guardianship order should be made. Upon the Director indicating his agreement to be appointed, this Court granted on an order at the hearing and appointed the Director as guardian of LYM, for a period of 2 years from the date of the order until 6 May 2026 (“Guardianship Order”), and directed that there be a hearing fixed on or before 31 March 2026 before the Judge in charge of the Mental Health List in the High Court for review of LYM’s guardianship arrangements.

13.  Upon appointing the Director as guardian of LYM, this Court further ordered that the Director be given the following powers:

(1)  To required LYM to reside at such place as may be specified by the Director;

(2)  To convey, or to arrange of the conveyance of LYM to the place so specified by the Director, and such reasonable force may be used as is necessary for the purpose;

(3)  To require LYM to attend at places and times so specified by the Director for the purpose of treatment or special treatment (within the meaning of section 59ZA of the MHO) or occupation, education or training;

(4)  To consent to that treatment (other than special treatment) on behalf of LYM but only to the extent that LYM is incapable of understanding the general nature and effect of such treatment;

(5)  To require access to LYM be given, at any place where LYM is residing, to any registered medical practitioner or approved social worker;

(6)  To make application to the Court for disclosure of the contact means of LYM’s siblings, if necessary; and

(7)  To make application to the Court for making a statutory will of LYM, if necessary.

14.  In the Guardianship Order, this Court also ordered the costs of the Committee and the OS be summarily assessed and paid out from LYM’s estate. The Director did not seek any costs order.

15.  I will set out my reasons hereunder as to why I came to the view that LYM should be received into guardianship.

B.  REASONS

B.1  Legal principles

16.  Part IVB of the MHO sets out the relevant provisions in relation to the guardianship of a mentally incapacitation person (“MIP”) including the establishment of a “Guardianship Board”. In particular, section 59M(2) provides that:

“(2) A guardianship application may be made in respect of a mentally incapacitated person on the grounds that—

(a) in the case of—

(i) a mentally incapacitated person who is mentally disordered, he is suffering from mental disorder of a nature or degree which warrants his reception into guardianship under this Part; or

(ii) a mentally incapacitated person who is mentally handicapped, he has a mental handicap of a nature or degree which warrants his reception into guardianship under this Part; and

(b) it is necessary in the interests of the welfare of the mentally incapacitated person or for the protection of other persons that the mentally incapacitated person should b so received.”

17.  Section 59O(3) then provides that:

“(3) In considering the merits of a guardianship application to determine whether or not to make a guardianship order under subsection (1) in respect of a mentally incapacitated person, the Guardianship Board shall observe and apply the matters or principles referred to in section 59K(2) and, in addition, shall apply the following criteria, namely that it is satisfied—

(a)	(i) that a mentally incapacitated person who is mentally disordered, is suffering from mental disorder of a nature or degree which warrants his reception into guardianship; or
	(ii) that a mentally incapacitated person who is mentally handicapped, has a mental handicap of a nature or degree which warrants his reception into guardianship;

(b) that the mental disorder or mental handicap, as the case may be, limits the mentally incapacitated person in making reasonable decisions in respect of all or a substantial proportion of the matters which relate to his personal circumstances;

(c) that the particular needs of the mentally incapacitated person may only be met or attended to by his being received into guardianship under this Part and that no other less restrictive or intrusive means are available in the circumstances; and

(d) that in the interests of the welfare of the mentally incapacitated person or for the protection of other persons that the mentally incapacitated person should be received into guardianship under this Part.”

18.  Ms Chui on behalf of OS referred the Court to WKP v Charles Chiu Chung Yee & Anor [2018] 3 HKLRD 232, CACV 157/2016 (English translation) in which Lam VP in his judgment had pointed out that section 59K(2) of MHO provides that the ultimate objective of the Guardianship Board when making the decision must be to promote the interest of the [MIP][3].

19.  It is quite clear from the above that the interests of the welfare of the MIP shall be one of the relevant factors to be considered in deciding whether the MIP should be received into guardianship. The best interests of the MIP is the guiding purpose in making a guardianship order[4].

B.2  Personal background of LYM

20.  LYM was born in 1947 and is now aged 77. She is single and has no children. She ranks 5^th in a total of 9 siblings. Sadly, she has been diagnosed with chronic schizophrenia since 1965 and has been in the current long stay care home (“Care Home”) since July 2004, ie for some 20 years. As set out in the SWR, LYM has been arranged to live in a 6-person bedroom measuring 33.4 square meters with simple furniture.

21.  LYM’s assets only comprised of cash, and she had cash deposit of around HKD 25million as at 22 March 2023. The expenses at the Care Home were around HKD 5,000 per month which included the monthly fees of the Care Home (HKD$1,875), medical, nutrition milk, escort, social activities, diapers, travelling and miscellaneous, and her average total monthly expenses in 2022 were about HKD 120,114, or about HKD 10,009.50 per month on average[5].

22.  The reasons why the Committee issued the Summons included[6]:

(1)  there was an enquiry from the Care Home on or around 5 March 2021 and the Care Home had queried the Committee’s ability and/or ambit of power in deciding on the healthcare for LYM including at that time whether LYM should take a COVID 19 vaccine, and whether LYM should be provided health supplements;

(2)  there were many other occasions where LYM was admitted into hospital but the Committee were not certain and indeed would have no power to decide as to what advice or decision should be made regarding the health condition on LYM;

(3)  LYM’s family members were mostly not interested in the matter as most of them were not in Hong Kong.

B.3  Discussion

B.3.1.  Whether it was necessary for a guardianship order to be made for LYM

23.  Counsel Mr Billy Ma represented the Committee at the hearing and that the Committee’s stance was always that LYM should be received into guardianship.

24.  At the hearing, the Director had initially maintained the view that a guardianship order was not necessary for LYM, in light of LYM’s favourable welfare arrangement, proper financial arrangement and stable health condition, and that the 6 powers under section 59R(3) of MHO were not applicable for LYM and in addition, the then less restrictive intrusive means to handle LYM’s welfare was of the best interest of LYM[7].

25.  On the other hand, OS noted that according to the SWR, the 6-person bedroom in which LYM was placed measured 33.4 square meters with simple furniture. LYM was attending regular medical follow up at Ha Kwai Chung General Out-Patient Clinic and West Kowloon Psychiatric Centre, and she was required to take prescribed drugs daily and to have medicine for Vitamin B12-Deficiency injected every 3 months. In 2021, she had 5 admissions to hospital for medical examinations and treatments. On 5 November 2022, LYM had a fall when she had a free walk in the common area in the Care Home, resulting in hospitalization for 3 days. LYM was assessed to have risk of fall and was required to use restraint tools such as restricted vest or platen when necessary, and a bed sensor was prescribed and loaned to her in March 2023. LYM was mainly chair-bounded and double-incontinent requiring wearing diapers 6-8 pieces a day. She required assistance to sit on a geriatric chair. The physiotherapist at the Care Home provided one session of training to LYM per week. No occupational therapy was arranged for her.

26.  OS was of the view that in light of LYM’s above then condition and medical and healthcare needs, it was worthwhile to explore whether there were better options of accommodation and nursing care plan available for LYM, as she could afford the cost of a higher standard of living with more frequent training or therapy which would benefit her health and overall well-being. OS also pointed out that aids and equipment could be purchased for LYM’s exclusive use to enhance her safety and improve her quality of life, and that all these were within the scope of power conferred upon a guardian, and could not be readily exercised without the making of a guardianship order.

27.  I agree with OS’s views. As further pointed out by OS, LYM is now 77, and in 2022, the life expectancy at birth for females in Hong Kong is 86.8 years, according to the Statistics of the Centre for Health Protection, Department of Health, HKSAR. LYM’s assets should be more than sufficient to financially maintain her for the rest of her life. Thus, OS was of the view that it was in the interests of the welfare of LYM to make the most of her available assets to maintain her health and to improve her standard of living in all aspects. Again, I agree.

28.  There was no reason as to why more frequent physiotherapy sessions could not have been provided for LYM and why no occupational therapy had been arranged for her.

29.  Although LYM could well be accustomed in her present environment, there was no reason as to why a bigger bedroom could not be arranged for her. There may be other better options for her accommodation and nursing care, and an improved standard of living with more frequent training or therapy which would no doubt benefit her health and overall well-being. There was no evidence that other better options had been explored for LYM.

30.  Those siblings of LYM who were represented by Ms Yuen and Mr Cheung had indicated their unwillingness for their contact means to be even disclosed to the social investigating officer. In my view, they showed a total lack of interest in the care arrangements of LYM. In light of the lack of support from her siblings, and the need to protect LYM who is incapable of making reasonable decisions in respect of matters relating to her personal circumstances and her own care, I am satisfied that the appointment of a guardian would be necessary in protecting the interests of LYM and that such an appointment is in her best interests.

B.3.2.  Whether Ms Yuen should be appointed the guardian

31.  As pointed out by OS, a guardian should normally be a family member or relative of the MIP as he/she would be in a better position to understand the needs of the MIP and is appointed out of love and affection to care for the MIP and to look after his/her welfare, and that the appointment of the Director as public guardian shall be considered as the last resort.

32.  In the present case, LYM’s siblings will be the potential beneficiaries of LYM’s estate in case of any intestacy under the Intestates’ Estates Ordinance, Cap 73, as there is no evidence that LYM has made a will. In fact, one of the Committee’s submissions in support for a guardianship order is that it may be considered necessary by the guardian to make a statutory will for LYM. Anyway, it is sad to see that none of LYM’s siblings, or any of her family members/relatives, has been interested in LYM’s care, and not even in supervising or overseeing the care arrangements of LYM. They seem to be simply content to delegate these arrangements to the Committee, to the extent that they did not even wish to disclose to the social welfare officer preparing the SWR as to their means of contact. It was further revealed by Mr Cheung that the siblings indicated that they would like to cut down unnecessary expenses of the Committee and had unanimously agreed to use only Mr Cheung as the attorney of LYM[8]. Their attitude would seem to indicate a complete lack of concern over LYM’s interests and welfare.

33.  The Committee, in particular Ms Yuen, had done their best in carrying out their duties delegated to them. Mr Cheung had no objection to Ms Yuen being appointed as the guardian, but with respect, Ms Yuen is not a member of LYM’s family, nor in any way related to LYM. She has only been carrying out her professional duties for which she has been paid for by her client/s, even though she has been visiting LYM regularly over the years. Ms Yuen may also have to act in accordance with her instructions from her client/s, and in light of her client/s’ unhelpful attitude in the present application, there may be conflict of interest on her part. In my view, Ms Yuen may not be a suitable person to be appointed as guardian for LYM.

34.  As mentioned earlier, in the end, the Director agreed to the appointment, and the Director was duly appointed as the public guardian for LYM, with those powers set out earlier in the Guardianship Order.

B.4  Conclusion

35.  For all the reasons set out above, this Court granted the Guardianship Order detailed earlier.

C.  SUMMARY ASSESSEMENT OF COSTS

36.  The Director has not sought costs of the Summons.

37.  OS submitted a statement of costs totalling HKD 82,300.66. I find such costs reasonable and simply round it off to HKD 82,300 to be paid out of the estate of LYM.

38.  TYTW, as solicitors for the Committee, submitted a statement of costs of HKD 257,840, including counsel fees of HKD 40,000. The total solicitors’ costs under sections B, C and D are in my view somewhat on the high side. They have already been allowed $143,691 under the Order of 3 March 2023 for the Preliminary Issues. The hearing on 7 May 2024 was about 1.5 hours. For the present hearing, I will summarily assess the solicitors’ costs to be a total of HKD 120,000. Thus, the total summarily assessed amount for TYTW inclusive of counsel fees is HKD 160,000.

39.  Messrs Cheung & Liu as solicitors separately representing Mr Yaddy Cheung filed only a short affirmation prior to the hearing on the Preliminary Issues. They submitted a statement of costs of a total of HKD 46,713. I will only allow HKD 25,000 on summary assessment.

40.  Unless I receive written objection from parties within 7 days hereof, these reasons will be uploaded to the Legal Reference System for publications.

Mr Billy NP Ma, instructed by Tse Yuen Ting Wong, for Ms Christine Yuen, one of the Committee

Messrs Cheung & Liu, for Mr Yaddy Cheung, one of the Committee

Ms Christine Wong, Senior Government Counsel and Mr Arnold Lam, Government Counsel of Department of Justice, for the Director of Social Welfare

Ms Melody Chui, Senior Solicitor of Official Solicitor’s Office, for the Official Solicitor

HCMH 44/2013

[2023] HKCFI 656

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MENTAL HEALTH CASE NO 44 OF 2013

________________________

________________________

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DECISION
(Preliminary Issues)

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Introduction

1.  The preliminary issues to be determined by this Court are (i)  whether the Court has power to appoint the Committee as guardian under section 59M of the Mental Health Ordinance, Cap 136 (“MHO”)  (“Issue 1”)  and if not, (ii)  whether the Court has inherent jurisdiction to grant a guardianship order to the Committee (“Issue 2”)  (collectively “Preliminary Issues”).

2.  On 7 August 2013, this Court, upon being satisfied that LYM was incapable, by reason of mental incapacity as defined in MHO of managing and administering her property and affairs, made an order on 7 August 2013 appointing Mr Yaddy Cheung and Ms Christine Sau Sing Yuen, in their capacity as solicitors, jointly as the committee of the estate of LYM (“Committee”)  under Part II of the MHO.

3.  On 6 September 2021, the Committee issued a summons to seek various directions and relief (“Summons”)  and in paragraph 1 thereof, the relief sought was for the Committee or alternatively the Director of Social Welfare (“Director”)  be appointed as the guardian of the mentally incapacitated person, LYM, under section 59M of MHO and be authorised to seek the opinion of any medical professional and any of LYM’s family members on the healthcare of LYM, including the decision on vaccination, undergoing surgery, or the like.

4.  On 21 February 2022, this Court directed that the Director be joined as a party to the Summons in respect of the relief sought by the Committee in paragraph 1 which was then adjourned to a date to be fixed for substantive hearing.  The substantive hearing was fixed before this Court on 23 November 2022.  At the hearing, the Preliminary Issues were raised by this Court and this Court directed further written submissions be lodged in respect of the Preliminary Issues and that the matter be dealt with on paper.

5.  Counsel Mr Billy NP Ma lodged written skeleton submissions on behalf of the Committee and Senior Government Counsel Ms Vienne Luk lodged written skeleton submissions on behalf of the Director.

Relevant provisions in MHO

6.  Under section 2 of MHO, a “mentally incapacitated person” (“MIP”)  means –

(1)  for the purpose of Part II, a person who is incapable, by reason of mental incapacity, of managing and administering his property and affairs; or

(2)  for all other purposes, a patient or a mentally handicapped person, as the case may be

7.  Further, under section 2 of MHO, “mentally incapacity” means

(1)  mental disorder; or

(2)  mental handicap,

and mentally incapacitated shall be construed accordingly

8.  Also, under section 2, “patient” means a person suffering or appearing to be suffering from mental disorder, “mentally handicapped person” means a person who is or appears to be mentally handicapped, and “mental handicap” means sub-average general intellectual functioning with deficiencies in adaptive behaviour, and “mentally handicapped” shall be construed accordingly.

9.  Part IVB of MHO concerns guardianship of a MIP. In particular, section 59J sets out the establishment of “Guardianship Board”, and section 59K sets out the functions and powers of the Board.  Further, section 59K(2)  sets out the matters or principles the Board shall observe and apply in the performance of its functions or the exercise of its powers.

10.  Section 59M of MHO provides, amongst other things, as follows:

“59M. Application for guardianship

(1)  A mentally incapacitated person who has attained the age of 18 years may be received into guardianship in pursuance of an application made to the Guardianship Board in accordance with this section.

(2)  A guardianship application may be made in respect of a mentally incapacitated person on the grounds that—

(a)  in the case of—

(i)  a mentally incapacitated person who is mentally disordered, he is suffering from mental disorder of a nature or degree which warrants his reception into guardianship under this Part; or

(ii)  a mentally incapacitated person who is mentally handicapped, he has a mental handicap of a nature or degree which warrants his reception into guardianship under this Part; and

(b)  it is necessary in the interests of the welfare of the mentally incapacitated person or for the protection of other persons that the mentally incapacitated person should be so received.

(3)  ……

(4)  ……”

11.  Section 59N provides, amongst other things, as follows:

“59N. General provisions as to guardianship applications

(1)  A guardianship application under section 59M(1)  shall be in the prescribed form and may be made by—

(a)  a relative of the mentally incapacitated person;

(b)  a social worker;

(c)  a registered medical practitioner; or

(d)  a public officer in the Social Welfare Department,

and every such application shall specify which of those persons is making the application and, if made by a relative of the mentally incapacitated person, shall state the relationship.

(2)  No guardianship application under section 59M(1)  may be made by any person in respect of the mentally incapacitated person unless the applicant has personally seen the mentally incapacitated person within the period of 14 days ending immediately prior to the date of the application.

(3)  ……

(4)  ……”

12.  Section 59O then provides that:-

“59O. Board may make guardianship orders

(1)  Subject to subsection (3), if, after conducting a hearing into any guardianship application made under section 59M(1)  for the purpose of determining whether or not a mentally incapacitated person who has attained the age of 18 years should be received into guardianship and having regard to the representations (if any)  of any person present at the hearing to whom a copy of the guardianship application has been sent under section 59N(3)  and considering the social enquiry report referred to in section 59P(1) the Guardianship Board is satisfied that the mentally incapacitated person is a person in need of a guardian, it may make an order appointing a guardian in respect of that person.

(2)  Any guardianship order made under subsection (1)  shall be subject to such terms and conditions as the Guardianship Board thinks fit, including terms and conditions (if any)  as to the exercise, extent and duration of any particular powers and duties of the guardian.

(3)  In considering the merits of a guardianship application to determine whether or not to make a guardianship order under subsection (1)  in respect of a mentally incapacitated person, the Guardianship Board shall observe and apply the matters or principles referred to in section 59K(2)  and, in addition, shall apply the following criteria, namely that it is satisfied—

(a)  (i)  that a mentally incapacitated person who is mentally disordered, is suffering from mental disorder of a nature or degree which warrants his reception into guardianship; or

(ii)  that a mentally incapacitated person who is mentally handicapped, has a mental handicap of a nature or degree which warrants his reception into guardianship;

(b)  that the mental disorder or mental handicap, as the case may be, limits the mentally incapacitated person in making reasonable decisions in respect of all or a substantial proportion of the matters which relate to his personal circumstances;

(c)  that the particular needs of the mentally incapacitated person may only be met or attended to by his being received into guardianship under this Part and that no other less restrictive or intrusive means are available in the circumstances; and

(d)  that in the interests of the welfare of the mentally incapacitated person or for the protection of other persons that the mentally incapacitated person should be received into guardianship under this Part.

(emphasis added)

13.  As for the social enquiry report, section 59P provides as follows:-

“59P. Report of Director of Social Welfare

(1)  For the purpose of section 59O, a report (social enquiry report)  signed by or on behalf of the Director of Social Welfare and prepared by a public officer in the Social Welfare Department shall, subject to subsection (2), be received in evidence for consideration by the Guardianship Board.

(2)  A copy of the social enquiry report (or the substance of the report)  referred to in subsection (1)  shall be given or disclosed to—

(a)  an applicant making a guardianship application under this Part;

(b)  the mentally incapacitated person the subject of the application; and

(c)  the counsel or solicitor representing any person referred to in paragraph (a)  or (b).

(3)  The social enquiry report shall contain the views and wishes of the mentally incapacitated person, in so far as they may be ascertained and include an assessment of the family background, and social and financial situation, of that person.

Statutory interpretation

14.  To start, section 19 of Interpretation and General Clauses Ordinance, Cap 1 provides that:

“An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit.”

15.  As has been explained by Li CJ in HKSAR v Cheng Kwun Yin (2009)  12 HKCFAR 568, at 574E – 575B, in interpreting a statute, the court’s task is to ascertain the intention of the legislature as expressed in the language of the statute and is an objective exercise[1].  The then Chief Justice went on to explain:

“12. The modern approach is to adopt a purposive interpretation. The statutory language is construed, having regard to its context and purpose. Words are given their natural and ordinary meaning unless the context or purpose points to a different meaning. Context and purpose are considered when interpreting the words used and not only when an ambiguity may be thought to arise……And the purposive approach (including the mischief rule)  has been reflected in Hong Kong in s 19 of the Interpretation and General Clauses Ordinance, Cap 1.

13. The context of a statutory provision should be taken in its widest sense and certainly includes the other provisions of the statute and the existing state of the law. ...”

16.  Fok PJ has also emphasized in HKSAR v Fugro Geotechnical Services Ltd (2014)  17 HKCFAR 755, at paragraph 22, pg 765-766 one must always have regard to the particular words used by the legislature in expressing its will.

17.  There is no dispute in relation to the above general principles.

Legislative history and intent of MHO

18.  Ms Luk has helpfully set out the legislative history and intent of MHO, as follows -

“4. …… guardianship was introduced into Hong Kong by the 1988 amendments of the MHO. According to the 1988 scheme, a guardianship application was forwarded to the Director and took effect upon acceptance by the Director. The Director played various roles in relation to guardianship applications, e.g. the Director may initiate an application, was required to make an assessment and was the authority for granting approval. See: LWY v Guardianship Board & Anor [2009] 3 HKC 170 at paragraph 20 [LoA#4] and sections 33, 34 and 35A (1988 version)  [FLoA#1] before the relevant 1997 amendments took effect.

5. In January 1997, the Mental Health (Amendment)  Bill 1997 (“the Bill”)  was introduced to amend the then MHO to, amongst others, provide for a new guardianship regime in respect of non-criminal matters for MIPs under an independent Guardianship Board, rather than being under the auspices of the Director. To improve the then existing arrangements for guardianship of adult MIPs, the Government proposed to create an independent Board which would be easily accessible and would have multi-disciplinary membership. It was suggested that the Board might be set up under the Judiciary, but the Government decided against this as it would not be appropriate to involve the Judiciary in administrative functions. The Board was to take over the functions and duties of the Director as the approval authority for guardianship applications. See: Legislative Council Brief dated 15 January 1997 (Ref. HW 9/3939/94 XV)  at paragraph 6 and sub-paragraph (c)  of the Explanatory Memorandum to the Bill at page 72 of the Annex [FLoA#2].

6. Regarding the types of people eligible for making guardianship applications, it was proposed in the Bill that guardianship applications could be made by the MIP’s relatives, registered medical practitioners or public officers in SWD. Many of the deputations proposed to include the heads of non-governmental organisations or social workers as eligible persons for making guardianship applications. However, the Government only agreed to include social workers as eligible persons for making guardianship applications and rejected the inclusion of the heads of non-governmental organisations due to the difficulty in making a legally enforceable and clear definition for non-governmental organisations or its heads. The Government considered that the Bill had provided adequate flexibility for the non-governmental organisations staff with whom the MIPs had resided to act as applicants if necessary[2]. See: Hong Kong Hansard dated 17 June 1997 at 190 and 191 [FLoA#3].

7. Further, the Government had expressed that if the cases concerned were not controversial, non-governmental organisations staff could continue to adopt the approach of managing the financial affairs for the MIPs as an informal trustee. It would not be a must to make guardianship applications for the MIPs, but if the related people thought that it would be more preferable to set down formal arrangements, and an applicant eligible to make application under the Bill would be available, they could also apply to be appointed the trustee of the estates of the MIPs. See: Hong Kong Hansard dated 17 June 1997 at 192 [FLoA#3].

8.  Subsequently, the Mental Health (Amendment)  Ordinance 1997(Ord. No. 81 of 1997)  [FLoA#4] was passed in June 1997 and Part IVB took effect on 1 February 1999[3]…...”

19.  With the above legislative history and intent in mind, the Court now turns to consider the Preliminary Issues.

Issue 1- whether the Committee can make an application for a guardianship order for LYM under section 59M

20.  As set out earlier, section 59M(2)  of MHO provides the grounds on which a guardianship application may be made and section 59N (1)  sets out the application shall be in the prescribed form (“Prescribed Form”)  and 4 categories of persons who may make the application (“Specified Persons”), and that every application shall specify which of those Specified Persons is making the application and , if made by a relative of the MIP , shall state the relationship. 

21.  According to section 3 of the Mental Health Guardianship Board Rules, Cap 136E, the Prescribed Form is Form 1 of the Schedule therein, and under Part 1 of the Prescribed Form, the applicant has to indicate under which of those 4 categories of Specified Persons he/she is making the application.  There is no other category of Specified Persons provided in the Specified Form for the applicant to choose to indicate.

22.  As pointed out by Ms Luk, unlike section 59U(4)  of MHO which specifies, amongst others, “any other persons (including a relative of the MIP)  who, in the opinion of the Board , has a genuine interest in the welfare of the MIP”, section 59N(1)  has not provided for the possibility of this other type of persons who would be eligible for making guardianship applications.

23.  Ms Luk has also submitted that in light of the Government’s rejection of the deputations’ proposal to include the heads of non-governmental organisations as eligible persons for making guardianship applications when the Bill was introduced and debated at the Legislative Council, section 59 N(1)  is prescriptive. 

24.  Mr Ma has also set out for this Court’s reference the Chinese version of section 59M(1), namely:-

“(1)  第59M(1)條所指的監護申請須採用訂明表格，並可由下述人士提出 ——

(a)  有關的精神上無行為能力的人的親屬；

(b)  社會工作者；

(c)  註冊醫生；或

(d)  社會福利署的公職人員，

此外，每一項該等申請須指明是該等人士中的哪位正提出該項申請；如該項申請是由有關的精神上無行為能力的人的親屬提出的，則須說明關係。”

25.  In the above Chinese version, the words “並可由下述人士提出” are in my view even clearer than the wording in the English version in that the application can only be made by those Specified Persons set out in (a)  to (d).

26.  In any event, in Mr Ma’s Further Skeleton Submissions, he also accepts the words “may be made by” in section 59N(1)  define the potential applicants who have the locus to make the guardianship application and “may” is a word of limitation and not permission. 

27.  In light of all above said, as the members of the Committee do not fall within the Specified Persons under section 59N(1)  of the MHO, the Committee has no locus to make a guardianship application to the Guardianship Board under section 59M of the MHO.

Issue 2 – whether the Court has inherent jurisdiction to grant a guardianship order under section 59M

28.  It is submitted by Ms Luk on behalf of the Director that:

(1)  Under section 59I, “guardianship order” is defined as an order made under section 59O[4], ie an order of the Board appointing a guardian in respect of an MIP.

(2)  With the addition of Part IVB which has come into operation since 1 February 1999, the Board was established to take over the functions and duties of the Director as the separate approval authority for guardianship applications in respect of adult MIPs.

(3)  Section 59J provides for the multi-disciplinary composition of the Board

(4)  Section 59K(1)  sets out the functions and powers of the Board

(5)  In considering the merits of a guardianship application to determine whether or not to make a guardianship order in respect of an MIP, the Board shall observe and apply the matters or principles referred to in section 59K(2)  as well as the criteria under section 59O(3).

(6)  The appeal mechanism also sheds light on the role of the Court vis-à-vis the Board on guardianship applications.  Under section 59W, the Court of First Instance (“CFI”)  is expressly made the venue for appeal. Further, a party’s right to appeal against the Board’s decision is limited to (a)  a question of law; or (b)  with the leave of the CFI, on any other question.

29.  Ms Luk has referred this Court to the case of Re C (unreported, HCMP 1327/2007, 20 September 2007)  in which the MIP’s previous guardian lodged an appeal against the Board’s decision to replace her with the Director as the new guardian after a review of the original guardianship order, arguing on the ground that the Board had failed to give any reasons for its decision.  The appeal was allowed by A Cheung J (as the Chief Justice then was)  who found that the Board had failed to provide reasons but he declined to make a decision in favour of the appellant on the substantive matter, which is to order the appellant’s appointment as guardian be continued under the renewed guardianship order.  As explained in paragraphs 50 and 51 of his judgment:-

“50. Secondly and more generally, having considered the relevant provisions in the Mental Health Ordinance, particularly those relating to the composition of the Board and those relating to appeals to the court, I take the view that generally speaking, the court’s appellate role is essentially to deal with questions of law (section 59W(1)(a))  or any other questions that may merit the special attention of the court.  In my view, the general intention is that matters like guardianship applications and reviews should primarily remain matters for the Board to decide. ….. The Board comprises three members, ie the Chairperson or a presiding lawyer member, a member belonging to the medical doctor/social worker category, and a third member who has had personal experience with mentally incapacitated persons.  That composition is uniquely suited for making decisions on the types of applications that the Board is required to make.  The combined professional learning, trainings and experiences are invaluable in ensuring that the best decision is made in the interest of the mentally incapacitated person.  Their collective views are entitled to high respect from the court.

51. In those circumstances, I would say that save in exceptional circumstances, the court should be slow to make, in effect, a first instance decision on an application that should have been dealt with by the Board (where as here, no reasons have been given for the decision below). …… If nothing else, the Court sits alone and does not have the assistance of either a medical doctor or social worker who is experienced in assessing or treating mentally incapacitated persons, or a person who has had personal experience with mentally incapacitated persons.”

30.  Thus submits Ms Luk, in light of above said, not only should the Court be slow to interfere with the Board’s decision on appeal, it is also not desirable for the Court to assume the role of the uniquely composed Board in considering guardianship applications and granting guardianship orders under section 59M.

31.  Ms Luk has also referred this Court to Wong Hing Cheong & Anor v Wah E Investment Ltd & Anor [2002] 2 HKLRD 175[5] where it was held that where an Ordinance created a right or a remedy which had no existence independent of the Ordinance creating it, and, at the same time, the Ordinance laid down a particular method of pursuing it in a particular court or tribunal, the courts would tend to confine a person in pursuit of that right or remedy, to that particular court or tribunal (see: paragraphs 19 and 26).  This is directly relevant to the present case in which Part IVB has created the guardianship regime in respect of non-criminal matters for adult MIPs, whereby an independent Board, being a legal quasi-judicial tribunal, was established with its central statutory role of conducting hearings in order to make guardianship orders for adult MIPs with decision-making incapacities.

32.  Ms Luk also points out that before the introduction of the Bill, the Government had decided against setting up the Board under the Judiciary as it would not be appropriate to involve the Judiciary in administrative functions. In light of the context and statutory purpose of Part IVB, including but not limited to the definition of “guardianship order”, the composition and specific functions of the Board and the appeal mechanism, Ms Luk submits that it is the clear intention of the Legislature to exclusively vest in the Board the right to consider guardianship applications and grant guardianship orders to adult MIPs. 

33.  I am in no doubt that the composition of the Board as constituted under Part IV of MHO is , as said by Chief Justice, as he then was, in Re C “uniquely suited for making decisions on the types of applications that the Board is required to make”, and that their collective views are entitled to high respect from the court.  However, the present issue is not in respect of any challenge to the Board’s decision, but rather the Board’s professional learning, trainings and experiences under the MHO cannot even be called into play, as there are no Specified Persons eligible to make an application to the Board under the provisions of MHO.  Although it was the intention of the legislature to vest in the Board the right to consider guardianship applications and to grant guardianship orders to adult MIPs, the present application demonstrates that there may be inadequacies in the legislation.  

34.  That there are inadequacies in MHO can be seen in the following cases which Mr Ma has referred the Court to:

(1)  LWY v Guardianship Board and Another [2009] 3 HKC 170

(2)  Re CML [2020] 3 HKLRD 481

(3)  Re TBS[2019] HKCFI 2929

35.  Without setting out in detail, it has been said in the above cases:-

(1)  it is precisely due to the inadequacy of the statutory guardianship regime that there are gaps to be filled by the exercise of the inherent jurisdiction of the High Court under the common law doctrine of necessity (paragraph 28, LWY)

(2)  the jurisdiction was at first said to be governed by the common law doctrine of necessity, but the subsequent cases seem to suggest that the jurisdiction is based on the wider principle of the best interests and welfare of the incompetent adults (paragraph 23, Re CML)

(3)  in addition to these parallel jurisdictions in Part II and Part IVB of MHO, there is now also the inherent jurisdiction of the CFI to deal with other welfare matters not covered in the statutes.  One has to bear in mind that medical care and access issues are often interrelated and there is also overlap between the power given to a guardian under s 59R(3)(e)  of MHO and the protective jurisdiction to make access order by the CFI.  By heaving separate inquiries conducted in different forums, the court or the tribunal cannot take a holistic approach in considering all the different and yet interrelated welfare matters of the MIP.  This is highly unsatisfactory. (paragraph 41, Re CML)

36.  Further, in Re CML, Lok J stated:

“25. In Re SA (Vulnerable Adult with Capacity: Marriage), in which Munby J, in 2005, reviewed the development of the inherent jurisdiction since its “rediscovery” in In re F (Mental Patient: Sterilisation) and explained its legal basis as well as the circumstances in which it was exercised:

(i)  The inherent jurisdiction is a “protective jurisdiction” on the welfare of incompetent adults.  It is used as the safety net to fill gaps left by the mental health legislation and for all practical purposes indistinguishable from the parens patriae or wardship jurisdiction in relation to children.

(ii)  The jurisdiction was first exercised in relation to medical issues.  It has been extended to questions of residence, contact, publication of matter damaging to a vulnerable adult and marriage.  It must evolve in accordance with changing social needs and social values.  In theory, it touches on everything that conduces to the incompetent adult’s welfare and happiness.

26. In St. Helens Borough Council v PE [20], Munby J, in 2006, also traced the development of the inherent jurisdiction on incompetent adults and held that “matters had moved on” and “the jurisdiction was exercisable in relation to a wide range of other questions, including, crucially, question where the doctrine of necessity was simply not engaged at all”. Hence, it is now settled in England that the jurisdiction is not based on the doctrine of necessity but on the wider principle of the best interests and welfare of the incompetent adults.  The relief to be granted is also not limited to declaration, and the court may make different order depending on the particular circumstances of the case.”

37.  In the above cases, the courts decided to exercise inherent jurisdiction in relation to access issues concerning the relevant MIP.  However, in light of Munby J’s comments that the jurisdiction must evolve in accordance with changing social needs and social values and that it is based on the wider principle of the best interests and welfare of the incompetent adults, I have come to the conclusion that in light of the inadequacies of MHO, the courts in Hong Kong have inherent jurisdiction to appoint a person, who does not fall within the Specified Persons in section 59N (1)  of the MHO, to be a guardian for a MIP.

38.  In light of my conclusion, I do not find it necessary to consider the other submissions made by Mr Ma in relation to common law jurisdiction for appointment of a guardian. 

Whether it is in best interest and welfare of LYM for a guardian to be appointed to protect her interests and welfare

39.  LYM has been residing in a rehabilitation centre (“Centre”)  under Caritas (“Caritas”)  for some 18 years.

40.  The basis of the present application was set out in the affirmation dated 30 August 2021 of one of the members of the Committee, Ms Yuen Sau Ying Christine, and also her 2^nd affirmation dated 27 January 2022.  In short Ms Yuen had deposed to:

(1)  On or around 5 March 2021, by an enquiry made by Caritas on or around 5 March 2021, a query was raised on the Committee’s ability and/or ambit of power in deciding on healthcare for LYM;

(2)  There had been several (and indeed regular)  instances in which the Committee was asked to advise on healthcare issues of LYM, eg on 5 March 2021, the Committee was asked whether LYM should take a COVID-19 vaccine.

(3)  Notwithstanding suggestions by the Committee to Caritas to provide health supplements to LYM, it seemed that there had not been any follow up, despite reminders

(4)  There were may other occasions where LYM was admitted into hospital and the Committee was duly informed but not certain and would have no power to decide as to what advice or decision should be made regarding LYM’s health condition in the event of any further query from Caritas or any hospital is raised.

41.  According to the Committee, LYM’s family members have arguments over the money and healthcare issues of LYM and are mostly not interested in the matter as most of them are not in Hong Kong, and that the family members seldom paid visits to LYM at the Centre, and presumably they could not be contacted by Caritas.

42.  On the other hand, Ms Luk submitted on behalf of the Director that LYM is currently receiving proper institutional care at the Centre, where she has been staying for approximately 18 years, with no issues over her care and medical needs and that any future similar medical needs can be sufficiently and satisfactorily addressed by the present arrangement, Part IVC and/or existing guidelines and that it is unlikely that LYM could satisfy the criteria under section 59O(3).  Further, although the Committee and Centre had held different views on the purchase of health supplements, the Committee has been working smoothly with the staff of the Centre on the welfare and care issues of LYM and there is no specific need that cannot be met without a guardianship order.

43.  The present case is unusual and a sad one, in that none of the family members of LYM is interested in applying to be her guardian, or to take up the responsibility of caring for her, instead of delegating such responsibilities to their solicitors.

44.  Even though I find that this Court has inherent jurisdiction to appoint a guardian for LYM, in deciding whether such an appointment should be made, I am of the view the provisions of sections 59M(2), 59O and 59P (which have been set out earlier)  may offer some guidance in whether the Court should in present circumstances appoint the Committee to be guardian of LYM. 

45.  In particular, I am of the view that in exercising this Court’s inherent protective jurisdiction over LYM, subject to any further submissions the Director and parties may make within 14 days hereof, this Court’s jurisdiction includes requesting and calling upon the Director to submit a social enquiry report, to contain the information set out in section 59P(3), which is to be received in evidence for consideration by this Court before the Court decides whether to appoint a guardian for LYM and if so, whether the Committee should be appointed the guardian.  Unless there is any objection thereto, the social enquiry report is to be submitted to this Court within 3 months hereof.  Upon receipt of the social enquiry report, the parties may restore paragraph 1 of the Summons for a hearing for directions (30 minutes).

Conclusion

46.  To summarise, my conclusions on the Preliminary Issues are:

(1)  On Issue 1, there is no power for this Court to appoint a person not specified in section 59N(1)  of MHO to be a guardian of mentally incapacitated person.

(2)  On Issue 2, the Court does have inherent jurisdiction to appoint a person not specified in section 59N(1)  of MHO to be a guardian of mentally incapacitated person.

47.  Regarding costs, the costs of the written submissions for the Preliminary Issues should be paid out of the estate of LYM. The Committee and the Director to submit within 14 days their respective statement of costs for this Court’s summary assessment.

48.  Unless objections with reasons are received by the Court within 7 days hereof, this Court grants leave for this decision to be published and uploaded to the Legal Reference website of the Judiciary.

Mr Billy NP Ma, instructed by Tse Yuen Ting Wong, for the Committee

Ms Vienne Luk, Senior Government Counsel of Department of Justice, for the Director of Social Welfare