IN THE DISTRICT COURT OF HONG KONG
NO. 1178 of 1984
||CHOW HUI SHUI YEE
|CHOW SUNG MING
Coram: Deputy District Judge van der Eb in Chambers
Date of Judgment: 29th April, 1985.
1. This matter comes before me in the following way.
2. On the 12th April, 1984, Chow Hui Shui Yee presented a petition for dissolution of her marriage with Chow Sung Ming alleging irretrievable breakdown of the marriage evidenced by desertion and behaviour. It was apparent from paragraph 3 of the Petition that there must have been doubts as to the mental state of the Respondent as he was then (and still is) an in-patient of Castle Peak Hospital.
3. On the 20th September, 1984, Mr. Cheung of the Legal Aid Department made an affirmation exhibiting a Medical Report from a Dr. T.K. Cheung of that hospital stating that in his opinion the Respondent was incapable of giving instructions by reason of his mental state. I am satisfied from further evidence that this position has not changed.
4. I have also before me a Memorandum from the Legal Department to the Legal Aid Department dated the 25th July, 1984. I quote it in extenso :
"In view of the fact that: -
The Respondent does not intend to defend the divorce petition;
There are no children of the family;
The Petitioner is not claiming any ancillary relief;
The Petitioner is not claiming costs for this petition;
According to the mother there is no property to the marriage; and
||The Respondent is unlikely to be discharged in the near future.
I consider there is no interest of the Respondent which might be prejudiced if a guardian ad litem is not appointed to act on his behalf. The Crown Solicitor thus does not consent to act as guardian ad litem."
5. On the 1st November, 1984, there was an application before me for directions as to whether a Guardian ad Litem should be appointed. It is clear from Matrimonial Causes Rule 105(5) that the Court has a discretion to dispense with a Guardian ad Litem. Some guidance as to the exercise of that discretion may be obtained from Morrissey v. Morrissey (1965) I WLR 1330 at 1335F - 1336A where the material words of M.C.R. 1957 r. 6(6) were the same :
..... and the Court may if it "considers it necessary in order to protect the interests of the person served order that some proper person may be appointed his guardian ad litem."
6. An example given by Payne, J. in that case where it would not be necessary to appoint a guardian would be where the infants had received legal advice and no useful purpose would be served by entering an appearance. In Morrissey v. Morrissey, so far as was known, no legal advice had been taken and on the facts of that particular case the Judge thought it right that there should be an appointment.
7. In the instant case the Respondent had received no legal advice nor had anyone on his behalf. The matter in issue was his own status, a matter traditionally of considerable importance in the view of the Courts and possibly a right to claim maintenance from his wife; he was incapable of giving instructions and in any event the case against him appeared to be extremely weak. I had no doubt that a Guardian should be appointed on his behalf and this view was entirely consonant with what would have been the practice, as I understood it, of the English courts. There seemed no reason to depart from that practice. Accordingly I ordered that the application be adjourned sine die for the Director of Legal Aid to locate any family member willing to be appointed. This proved impossible and Mr. Clough did not in any event feel it was appropriate for the Petitioner's solicitors to make such enquiry. I therefore further ordered on the 26th November, 1984, that the application for appointment of a Guardian ad litem be adjourned to the 11th December, 1984, and that the Crown Solicitor or his representative should attend. That hearing was adjourned part-heard until the 14th December, 1985. On those dates I heard arguments to which I shall refer below. On the 31st January, 1985, I sought confirmation that the Crown's case was that...