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