A prima facie case for mental inquiry must allow rebuttal by the subject before the inquiry; failure to do so affects fundamental rights and indicates bad faith in the application.

JUDGMENT

Abu Bakar Jais JCA:

Introduction

[1] There were initially four related appeals before us. All originated from one Originating Summons ("OS") filed at the High Court ("HC") by Tai May Chean ("TMC"). The appeals arose because the OS was allowed by the learned HC Judge. Two appeals were subsequently withdrawn before us in open Court. We were therefore left with two appeals. The main appeal is filed by Ng Pik Lian ("NPL"). NPL is the mother of TMC. The second appeal is by NPL's son and TMC's brother, Tai Hean Leng ("THL").

[2] TMC, through the OS, wanted an inquiry to be done to determine whether her own mother, NPL, is mentally disordered. The HC ordered the inquiry. TMC was also granted by the HC an order that THL produce NPL for the inquiry. Thus, NPL appealed the learned HC Judge's decision ordering the inquiry and THL appealed against the order that he is required to produce NPL for the same.

Background Facts

[3] Since 2013, separate from the present action, there are several legal suits between NPL and TMC. The suits are about family assets. Since then, TMC is estranged from NPL. They are no longer in a cordial and filial relationship. They stayed apart and kept their distance from each other.

[4] There was also criminal prosecution against TMC for criminal breach of trust with regard to family company funds upon complaint by NPL.

[5] In one of the suits, TMC applied to strike out the same on the ground that NPL has no mental capacity to litigate. Wong Chee Lin JC (as she then was) interviewed NPL in open Court and refused TMC's striking out application.

[6] In yet another suit, Ong Chee Kuan JC dismissed the same. He found among others, that TMC had bad faith in pursuing the suit. In this suit, TMC among others had applied to remove NPL from being a director in the family company.

[7] It is a fact that only after many years of acrimonious litigations between the two, did TMC apply for the inquiry against NPL before the HC. The inquiry was applied pursuant to s 52 of the Mental Health Act 2001 (" MHA ") to determine whether NPL is mentally disordered and whether such mental disorder is making her incapable of managing herself and her affairs.

HC's Decisions

[8] The HC found some evidence that NPL might be mentally disordered. Therefore, the HC decided that a prima facie case has been proven for the inquiry.

[9] The HC had followed the Court of Appeal case of Tan Poh Lee & Ors v. Tan Kim Choo @ Tan Kim Choon & Anor, [2018] 5 AMR 829 regarding prima facie case to order the inquiry.

[10] In following Tan Poh Lee (supra), the HC must have not considered and heard the rebuttal to the prima facie case before ordering the inquiry.

[11] The HC also decided that THL must produce NPL for the inquiry but gave no reasons why THL must do so.

NPL's Submission

[12] NPL's grounds of appeal are as follows:

(a) the learned HC Judge failed to properly appreciate the legislative intent of the MHA and TMC's bad faith;

(b) that TMC, as a hostile party has no locus standi in mounting an application under s 52 of the MHA ;

(c) the learned HC Judge misunderstood s 52 of the MHA and hence adopted the wrong test;

(d) the learned HC Judge misconstrued Tan Poh Lee and

(e) the learned HC Judge overlooked that the power under s 52 of the MHA must be exercised with restraint.

THL's Submission

[13] The HC has no jurisdiction to order that THL produce NPL for the inquiry. Even if there is jurisdiction, the evidence adduced does not support the order against THL.

[14] There is no reason given by the learned HC Judge why the order to produce NPL was made against THL.

[15] The HC failed to appreciate that the application for inquiry is not made in the interest of NPL but had been pursued by TMC to further her personal interest for the litigation in the various suits.

TMC's Submission

[16] There are two points raised by TMC at para 2.7 of her written submission in resisting NPL's present appeal.

[17] The first point contended by TMC before us is that NPL has no right to