RE HVD

HCMH 48/2021

[2022] HKCFI 1486

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MENTAL HEALTH CASE NO 48 OF 2021

_________________

_________________

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DECISION

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1.  This is my decision on the costs of the two aborted medical examinations of HVD and the costs of the hearing on 12 January 2021.

2.  There are two fundamental premises which I would highlight at the outset.

3.  First, court orders are made to be observed.  If a party is free to choose whether to obey or disobey an order, that would undermine the integrity of the court’s process.  A should know this and should fully appreciate the vital importance of complying with any order or direction made against him.

4.  The second fundamental premise is that all the orders and directions made by the court in these mental health proceedings are made with the interests of HVD as the paramount consideration.  I have previously ruled that legitimate queries have been raised to cast serious doubt on the mental capacity of HVD.  Coupled with her old age, while the inquiry is yet to take place, there are enough materials before me to justify making interim orders to treat her as a vulnerable adult and protect her interests and protect her from any potential exploitation.  Parties should comply with these orders so as to protect HVD’s interests.  Again, A should fully appreciate all these. 

5.  Against these two fundamental premises, if a party has a genuine intention to comply with the court orders and directions, both in words and in spirit, and protect HVD’s interests, one would expect the party to act reasonably, if not proactively, to comply with all the court orders.  He or she would seek to overcome any obstacle that may arise in the process.  In the event of any disagreement, parties should try to compromise and not dwell on minor details or perceived mistakes made by the other side. 

6.  On 15 October 2021, I granted a temporary stay of the injunction against A expressly for parties to make arrangement for a medical examination to be conducted on HVD in Singapore via video link[1]. 

7.  Two examinations were scheduled for that purpose.  The first one was fixed for 26 October 2021 and when that attempt failed, a second one was scheduled on 2 November 2021.  The second attempt also failed. 

8.  Having considered the contemporaneous correspondence, I am of the view that A should be responsible for the costs caused and thrown away by the two failed attempts and half of the costs of the hearing on 12 January 2022, which was in effect necessitated by the aborted examinations. 

9.  I do not propose to go into the details of what had happened during the stay period from 15 October 2021 to 5 November 2021.  I generally agree with the observations and submissions made by Mr Avery Chan, counsel, appearing for K. 

10.  In particular, for the first scheduled examination, I find that A had not been acting in a responsive or reasonable manner to the reasonable proposals made by K’s solicitors.  Having had to meet a very tight timeframe, K’s solicitors issued instructions to Dr Wong on 22 October 2021.  A took issue with these instructions, which have since been referred to by his solicitors as “the Unilateral Instructions”.  The complaint was that the Unilateral Instructions were not in agreed terms and were contrary to the parties’ intention to provide joint instructions to the expert. 

11.  I consider that the complaint was ill-founded and was in any event counter-productive.  If A had genuinely wanted to arrange for the medical examination, he could have made amendments to, or supplemented, any part of the Unilateral Instructions which he considered to be unsatisfactory.  Instead, he dwelled on this complaint and did not seek to take the matter forward in any constructive way. 

12.  Furthermore, the allegation that HVD was not fit to attend the scheduled examination on 26 October 2021 must be treated with great scepticism, as three days later, she was brought by A to undergo a mental capacity test. 

13.  For these reasons, I consider that A had not been acting reasonably with a view to arranging the medical examination.  The court had expected both parties to act reasonably when it granted the stay of the injunction in October 2021.  What I fail to see here is any serious attempt, effort or intention on the part of A to try to make the examination happen. 

14.  As for the second attempt, the examination was cancelled at the last minute as HVD had to undergo an urgent surgical procedure.

15.  There seems to be no reason why A could not have informed K that HVD had undergone a CT scan on 29 October 2021 and forewarned K that there might be a possibility that the second examination would be derailed. He should not have agreed on 29 October 2021, the same day when the scan took place, that the second examination be fixed on 2 November 2021 without informing K of HVD’s latest physical condition.

16.  If he had been transparent about HVD’s medical needs, both parties could have worked together to see how best to take things forward and the wasted costs of the second examination might likely have been avoided. 

17.  In the circumstances, A should be held responsible for the wasted costs arising out of the second scheduled examination. 

18.  The hearing on 12 January 2022 was scheduled in order to sort out the conduct of the medical examination.  I have found that A was to be blamed for the two aborted examinations.  Prima facie he should also bear the costs of the hearing.  However, the hearing was in fact partly used to work on the joint instructions to the expert.  That part of the hearing cannot be said to have been totally wasted. 

19.  I will therefore order that A do bear half of the costs of the hearing.  The other half of the costs be in the cause. 

[Submissions on quantum]

20.  There is clearly duplication between fee-earners as disclosed by K’s statement of costs.  The costs claimed for the last hearing are clearly excessive.  The costs are going to be taxed down.

21.  I make the following costs orders:

(1)  K do have costs of the two aborted examination, summarily assessed at $85,000.

(2)  K do have half of the costs of the hearing on 12 January 2022.  The costs of the whole hearing be summarily assessed at $150,000.

(3)  Half of the costs of that hearing be in the cause. 

(4)  A do pay the above assessed costs on or before 27 May 2022. 

(5)  A do pay to K the half share of the expenses of the medical examination on 20 January 2022 in the sum of $125,879.08 on or before 27 May 2022. 

HCMH 48/2021

[2021] HKCFI 3213

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MENTAL HEALTH CASE NO 48 OF 2021

_________________

_________________

_______________

DECISION

_______________

1.  Before me today are two applications relating to the ex parte injunction granted by Deputy High Court Judge MK Liu concerning HVD on 18 June 2021. The applicants, the two daughters of HVD, ask for a continuation of the injunction. On the other hand, A, HVD’s son, seeks a discharge of the injunction on the ground that the applicants had put forward false and misleading information before the ex parte judge and were in breach of their duty of full and frank disclosure. Furthermore, it is suggested by A that K, one of the applicants, is in fact taking advantage of the present mental health proceedings to advance her self-interest in two High Court actions involving K, HVD and A, namely HCA xxxxxxxx and HCA xxxxxxxx.

Mental state of HVD

2.  I shall first look at the mental state of HVD.  There is conflicting evidence presented before the court by the parties on this.

3.  The applicants rely on a number of medical reports and certificates issued by doctors in Hong Kong to show that HVD is a mentally incapacitated person or a vulnerable adult who is an elderly suffering from dementia and is therefore not capable of exercising her free will to make decisions for herself, including deciding where to reside, whether to travel and how to dispose of her property.

4.  The applicants primarily rely on, first, a referral by Dr Lee Wing Lam on 20 October 2020 to a private psychiatrist upon noting behavioural and psychological symptoms of dementia.  Dr Lee is a government doctor, working in the Hospital Authority’s General Out-patient Clinic. 

5.  Secondly, the applicants point to the diagnosis made by Dr David Dai, a specialist in geriatric medicine, on 26 November 2020.  The diagnosis was Alzheimer’s disease.  The evidence reveals that Dr Dai has prescribed HVD with medication to treat her dementia.

6.  Thirdly, the applicants rely on the report of Dr Jimmy Dong, a psychiatrist, who examined HVD on 11 May 2021.  The report was prepared for the purpose of the section 7 inquiry.  Dr Dong opined that HVD has been suffering from Major Neurocognitive Disorder due to Alzheimer’s Disease and that she is a mentally incapacitated person within the meaning of the Mental Health Ordinance. 

7.  On the other hand, A disagrees that HVD is a mentally incapacitated person or a vulnerable adult as alleged by the applicants.  He relies on a medical certificate issued by Dr Tsang Ping Ham on 22 March 2021.  The doctor certified HVD to be mentally fit, competent and capable of signing wills and relevant legal documents on her own accord.  The applicants have recently obtained a letter from Dr Tsang that he is a retired general surgeon and that he understood that his certificate was needed for bank account opening purposes.

8.  A also relies on a lasting power of attorney signed by HVD in Singapore on about 10 June 2021.  On the face of the lasting power of attorney is a certificate signed by Dr Chong Mei Sian, a specialist geriatrician in private practice in Singapore, to the effect that HVD understood the purpose of making the document and the powers that would be given to the donors. 

9.  Separately, A has produced a statutory declaration signed by HVD in Singapore on 22 June 2021 where she said that she is happy where she is, ie in Singapore, and she wants to enjoy her holidays with her grandchildren and her daughter-in-law while A is taking care of her.  There is also an affirmation signed by HVD herself in which she effectively said that she is mentally fit to make decisions for herself. 

10.  The above is the scope of the primary evidence before me on the mental condition of HVD.  

11.  In the absence of a proper inquiry, it is not possible for the court to resolve the issue and express any definitive view today.

12.  That said, there are clearly enough materials before me which raise serious doubt over the mental capacity of HVD and her ability to exercise her free will to decide how she wants to go about her daily lives.  I refer in particular to the referral and observation of Dr Lee, the government doctor, and the fact that Dr Dong has in fact prescribed medication for dementia to treat HVD. 

13.  These are objective evidence that cannot be ignored.  This is the same view arrived at by the Official Solicitor.  I acknowledge that HVD herself has signed a lasting power of attorney, a statutory declaration and an affirmation where she expressed her view that she is mentally fit and she disagrees with what the applicants have said about her mental condition.

14.  Her own evidence is of course something that I should take into account in the evaluation exercise.  However, the doubts raised by the applicants, which I have found to be legitimate and justifiable, go to the very question of whether HVD has the mental capacity to sign documents of her own free will.  As such, for today’s purposes, the statements made by HVD cannot be accepted wholesale at face value.

15.  In the present case, where an inquiry is to be conducted only at a later stage, the inherent protective jurisdiction of the court is clearly engaged to protect the interests of HVD.  Here, I am satisfied that there is a clear connection between HVD and Hong Kong.  It is the applicants’ evidence that HVD had been living with K in Hong Kong for a few years up to 30 March 2021.  A is suggesting that HVD has not treated or viewed Hong Kong as her home.  It is stressed that while HVD is a permanent HKID cardholder, she also has a Singapore residency and a British passport.  She used to live in Dubai for a long period of time and she only makes regular trips to Hong Kong.

16.  The objective evidence before me is that HVD is seeing doctors on a regular basis in Hong Kong.  She has various appointments with different departments of the Hospital Authority.  This suggests that she has been spending time here receiving regular treatment.  I am satisfied that the Hong Kong court has jurisdiction over HVD.  The fact that she holds multiple residency and passports is beside the point.

The discharge summons

17.  Mr Kevin Bowers, Solicitor Advocate appearing for A, submits that the applicants had made untrue and misleading allegations to the ex parte judge. They had wrongly represented to the court that A had abducted and wrongfully removed HVD from Hong Kong.  Mr Bowers relies on two matters. 

18.  First, A deposed in his affirmation that he told P on about 25 May 2021 that HVD would be going on a trip to Singapore.  It was therefore false and misleading for the applicants to have said that A had abducted HVD.

19.  The crux of the applicants’ ex parte application is that A had unilaterally and surreptitiously removed HVD from Hong Kong to Singapore when there is reason to believe that HVD is a vulnerable adult.

20.  Hence, if what A now says is true, then the injunction must go as the factual basis of the application is false.

21.  P has denied that there was such a conversation.  Hence it is P’s words against A’s words.  This is a substantial factual dispute that cannot be resolved today.  The authorities are clear that in such a case, such dispute should be deferred to trial and it is not the correct procedure to discharge the injunction at the interlocutory stage.  The purpose of interlocutory proceedings is to regulate the future conduct of the case until a stage when the dispute can be resolved.

22.  Mr Bowers also relies on a statutory declaration dated 9 April 2021 signed by HVD.  There, she confirmed that she made the decision to stay with A of her own free will and without any threats, duress and/or inducements.  It is not in dispute that K had received a copy of it.  Mr Bowers submits that the existence of the statutory declaration is clearly a pertinent and relevant matter which the applicants should have drawn to the ex parte judge’s attention in discharge of their duty of full and frank disclosure.  But they did not.  The crux of the applicants’ complaint is that HVD was taken to Singapore without her conscious and voluntary decision.  Yet the statutory declaration would tend to suggest otherwise. 

23.  Mr Terrence Tai, counsel for the applicants, submits that here the mental capacity is in issue and there is a real question as to whether HVD is a vulnerable adult that is susceptible to the influence of others.  It is therefore farcical for A to rely on the statutory declaration when he must have been the one responsible for its preparation.

24.  I do not think that is a valid answer to A’s complaint.  The point here is that in the ex parte application, the applicants had a duty to disclose all relevant facts for the court to weigh and assess so as to arrive at a just conclusion in a situation when the other side is not present.  The fact that HVD had previously signed the statutory declaration which on its face suggested that she decided to stay with A is clearly a matter that should go into the weighing exercise.

25.  I consider that the applicants ought to have disclosed the existence of the statutory declaration.  However, in the overall scheme of things, I have to say it is not a material non-disclosure such as would justify the discharge of the injunction on this ground above.  It would be a disproportionate consequence.  This is particularly so given that there are plainly enough medical evidence put forward by the applicants to cast doubt on HVD’s mental capacity which provides a basis to invoke the court’s protective jurisdiction.

26.  I therefore conclude that it is not an appropriate case to discharge the injunction. 

27.  I should add that given the evidence before me on HVD’s mental state, there is sufficient basis for the applicants to apply to invoke the inherent jurisdiction of the court in the interests of HVD and I would not come to the conclusion that the bringing of the present proceedings is an abuse of the court’s process.

The continuation application

28.  I now turn to the continuation application.

29.  The applicants’ case against A is that he has been exploiting the vulnerable condition of HVD and taking advantage of her.  There is therefore an urgent need to compel A to return HVD to Hong Kong.

30.  The evidence reveals that in October 2020, A took HVD to a bank to cause a transfer of money out of HVD’s accounts (one in her own name and the other in joint names with K) in the sum of HK$495,000 to A’s account and another sum of at least HK$636,090 and US$58,863.

31.  Also, in around January 2021, A had procured HVD to transfer her 40% shareholding in a family company, KHII, to A at apparently nominal consideration.

32.  A’s evidence and submissions are pointedly silent on these allegations. There seems to be no apparent justification or explanation for such transfers. When viewed against HVD’s age and doubts over her mental capacity, these are clearly weighty evidence which goes to support the applicants’ case.  On top of all these, the alleged voluntary decision of HVD to travel during the pandemic when the COVID-19 virus was still rampant just for a family holiday is hard to understand.

33.  I am satisfied there is a serious issue to be tried that A is taking advantage of HVD’s vulnerable state when he took her to Singapore.

34.  Pending proper determination of HVD’s mental capacity, the balance of convenience lies in favour of maintaining the injunction to compel A to return HVD to Hong Kong.  That is in fact a mandatory injunction and the deadline has already passed. 

35.  The purpose of that injunction is to ensure that HVD is not subject to any risk of exploitation at the hands of A as suggested by the applicants.  Upon HVD’s return to Hong Kong, and in the event of dispute between the parties in the interim, the Hong Kong court can make further orders protecting the interests of HVD.  These orders can be enforced more properly and effectively if HVD is physically in Hong Kong than if she is in Singapore.  Hence, in principle, I would agree that the injunction should still apply and should not be stayed generally as now suggested by A. 

36.  However, I am mindful that the practical effect would be to compel HVD to fly back to Hong Kong and go through the mandatory quarantine requirement in a hotel room for 14 days.  Given her advanced age, there is no guarantee that such requirement would not have any adverse effect on her health. 

37.  Further, given that parties are in principle agreeable that a medical examination can be conducted shortly by the applicants’ nominated expert via video-link, I would grant a temporary stay so that arrangements can be made to allow that examination to take place.  In the event that the applicants’ doctor is of the opinion that HVD is not a mentally incapacitated person, that may largely resolve the present proceedings in A’s favour.  And in that case there is no need to subject HVD to the quarantine requirement.

Conclusion

38.  I therefore make the following orders:

(1)  The discharge summons be dismissed.

(2)  A’s application to vary the injunction be dismissed.

(3)  Para 2 of the injunction remains to have effect save that there be a temporary stay of its execution from today to 5 November 2021 for a medical examination to be conducted on HVD to assess her mental capacity in Singapore by the applicants’ nominated psychiatric specialist via video link.

(4)  During the stay, A do give access or procure that access be given to P to meet with HVD two days a week, in the presence of A’s wife or his helper, in the hotel or apartment at which P is staying in Singapore.

(5)  There be liberty to apply in relation to any matters arising after the contemplated medical examination is concluded.

(6)  Where parties cannot agree on the arrangement for the medical examination during the stay period, the injunction will come into effect again upon the expiry of the stay.  In that event, there be liberty to apply in general.

[Submissions on costs]

39.  The applicants do have costs of the discharge summons, to be taxed if not agreed.  The costs of the continuation summons be in the cause of the originating summons.