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Ng Kong Yeam By His Next Friend Ng Chung San v Farlim Group (China) Ltd And Others

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date16 August 2016
Year2016
Judgement NumberHCA2176/2011
Subject MatterCivil Action
CourtHigh Court (Hong Kong)
HCA2176/2011 NG KONG YEAM by his next friend NG CHUNG SAN v. FARLIM GROUP (CHINA) LTD AND OTHERS

HCA 2176/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2176 of 2011

________________________

BETWEEN
NG KONG YEAM
by his next friend NG CHUNG SAN		 Plaintiff
and
FARLIM GROUP (CHINA) LIMITED 1st Defendant
LIM GAIT TONG also known as
TAN SRI DATO SERI LIM GAIT TONG		 2nd Defendant
ONG HAN CHEONG 3rd Defendant

________________________

Before: Mr Recorder Pow SC in Chambers
Date of Hearing: 26 July 2016
Date of Judgment: 16 August 2016

________________________

J U D G M E N T

________________________

Background

1. This is an appeal from the Order of Master M Wong dated 1 February 2016 removing Madam Kay Swee Pin (“Madam Kay”) as the next friend of the plaintiff (“Dato Ng”) and substituting it by Mr Ng Chung San (“Mr Ng”). It is not in dispute that Madam Kay was the mistress of Dato Ng and had been cohabiting with him for nearly 30 years. Mr Ng is a son of Dato Ng.

2. This action began by way of a Writ of Summons endorsed with a Statement of Claim issued 21 December 2011. The plaintiff Dato Ng originally sued in his own name against three defendants. The Writ contained a Statement of Truth which bore the apparent signature of Dato Ng dated 16 December 2011. The title of the Writ was slightly amended in respect of the 3rd defendant’s name and was re‑filed on 12 March 2012.

3. Defence and Counterclaim by the 1st and 2nd defendants was filed on 8 May 2012. The plaintiff filed its Reply and Defence to Counterclaim on 25 June 2012 which also contained a Statement of Truth bearing the apparent signature of Dato Ng dated 25 June 2012. Pleadings were eventually close by 24 August 2012.

4. Email correspondence between Madam Kay and Mr Ng in August 2012 [1] showed that Madam Kay was aware that Dato Ng might have been suffering from mental incapacity since April 2012. As of August 2012, Dato Ng was still living with Madam Kay in a condominium in Singapore.

5. In July 2013, Madam Kay, Mr Ng and a daughter of Dato Ng (“Irene”) were engaged in email correspondence with regard to whether Dato Ng should remain with the care of Madam Kay in Singapore or whether he should be taken back to Malaysia to be taken care of by his wife and children [2]. Eventually, Dato Ng was taken back to Malaysia on 30 July 2013 and since then he has been remaining separated from Madam Kay.

6. On 28 August 2013 however, a Consent Summons was filed for the joint application of the solicitors for the plaintiff (by his intended next friend) and solicitors for the 1st and 2nd defendants that Madam Kay be appointed as next friend of the plaintiff Dato Ng in this action. Master Au‑Yeung (as she then was) granted the Order on 30 August 2013. The application for appointment of next friend was initiated by a summons issued by solicitors for the plaintiff on 2 August 2013. Given the condition of Dato Ng and his moving back to Malaysia since July 2013, it seems that solicitors for plaintiff must have received instructions from Madam Kay pursuant to a General Power of Attorney executed by Dato Ng in favour of Madam Kay in Hong Kong dated 5 August 2010. There was no explanation as to why Madam Kay initiated this sudden move after Dato Ng separated from her.

7. On 6 December 2013, the High Court of Malaya declared Dato Ng a mentally incapable person (“MIP”) and appointed a committee of four persons to administer the affairs of Dato Ng (“the Committee”). Dato Ng has all together four children. They were all made members of the Committee. The Committee was empowered, inter alia, to act as next friend or guardian ad litem of Dato Ng in legal proceedings generally [3].

8. By a summons dated 19 August 2015 issued by solicitors for Mr Ng as the intended next friend, Mr Ng applied for, inter alia, the following orders:

(1) Madam Kay be removed as next friend of the plaintiff;

(2) the Committee be appointed as next friend of the plaintiff in substitution of Madam Kay; and

(3) alternatively to (2), Mr Ng as a member of and duly authorized by the Committee be appointed as next friend of the plaintiff in substitution of Madam Kay.

9. On 7 September 2015, a hearing took place before Registrar Ho wherein orders were made inter alia for the filing of affirmations in opposition by Madam Kay and the filing of affirmation in reply by the Committee thereafter.

10. The substantive hearing of this application took place before Master M Wong on 1 February 2016 at the end of which it was ordered that:

(1) Madam Kay be removed as next friend of the plaintiff;

(2) Mr Ng as a member of and duly authorized by the Committee be appointed as next friend of the plaintiff in substitution for Madam Kay;

(3) plaintiff do have leave to make consequential amendments to the Amended Writ of Summons and Statement of Claim and to file and serve the Re‑Amended Writ of Summons and Amended Statement of Claim on or before 15 February 2016;

(4) there be no order as to costs between 1st and 2nd defendants and the plaintiff, between 1st and 2nd defendants and Madam Kay and between 1st and 2nd defendants and the Committee;

(5) there be no order as to costs between the plaintiff and the Committee;

(6) the Committee do bear their own costs of the Summons dated 19 August 2015 up to and including the hearing on 7 September 2015;

(7) Madam Kay do personally pay the Committee costs of the summons dated 19 August 2015 after the hearing on 7 September 2015 including today’s hearing with certificate for counsel, to be summarily assessed on paper;

(8) the Committee do submit and serve Statement of Costs for summary assessment on or before 15 February 2016; and

(9) Madam Kay do submit and serve the Statement of Objection for summary assessment on or before 29 February 2016.

11. Madam Kay now appeals against the Order of Master M Wong by way of her Notice of Appeal dated 15 February 2016.

Relevant legal principles

12. In SX v LW and others (unreported) HCMC 8/2011, Mimmie Chan J said at paragraphs 7 and 8:

“7. Whether it is a case of a fresh appointment, or a change in the appointment, of a guardian ad litem for a patient under disability, an important if not the paramount consideration of the court in the exercise of its discretion must be the protection or safeguarding of the patient’s interests in the action.

8. Even if it is to be accepted that impropriety does not have to be established in this case, and that a distinction can be made between the removal of a guardian on the ground of impropriety, and a change in the appointment for reasons other than impropriety, the onus is on F — as the party making the application for his appointment as guardian in place of the Official Solicitor who has been appointed by the court — ‌to establish to the satisfaction of the court that he is a fit and appropriate person to be appointed as guardian for the Husband in this case.”

13. In Moral Luck Finance Ltd v Law Kin Leung (2015) 18 HKCFAR 343, Ribeiro PJ said at paragraphs 20 – 21:

“20. Upon filing such documents in the Registry, Madam Cheung would, in accordance with O.80 r.3(6)(c), have been entitled to appear as Mr Law’s guardian ad litem without any application to the Court. The statutory procedure is obviously designed to avoid unnecessary satellite litigation over mental capacity in ordinary cases involving persons under disability.

21. I might add in passing that the assumption by a next friend or guardian ad litem of that role without prior inquiry by the Court may of course not be final. If, for instance, it is subsequently discovered that the person assuming the role is not acting in good faith or is otherwise unsuitable, or indeed, for any other good reason, the Court may appoint someone else in substitution for the person previously assuming the role. ...”

As a footnote to paragraph 21, Ribeiro PJ quoted the provisions of Order 80, rule 3(4) which reads:

“Where a person has been or is next friend or guardian ad litem of a person under disability in any proceedings, no other person shall be entitled to act as such friend or guardian, as the case may be, of the person under disability in those proceedings unless the Court makes an order appointing him such friend or guardian in substitution for the person previously acting in that capacity.”

14. It is thus clear that the burden is on Mr Ng to establish that there are good reasons for removing Madam Kay. Mr Ng also has to establish that the Committee is a fit and proper “person” or alternatively, he himself is a fit and proper person to act as the protector of Dato Ng’s interest.

15. In Nalder v Hawkins (1833) 2 My & K 243, Lord Chancellor Brougham said at page 249:

“The true and the just principle which should govern all such cases is this. No discouragement ought to be thrown in the way of persons bonâ fide suing as next friends; but no undue facility should be given to mere volunteers, who interfere rather for their own purposes than for the [infant’s] advantage. While they appear to act bonâ fide they will be protected; the presumption will rather be in their favour; the proof will rather be thrown upon those who impeach their motives; the leaning will be more for than against them. But no strained presumptions will be made to protect them; no forced constructio[n]s will be put on their conduct; no benefit from bare possibilities will be conjured up in their behalf. They must be content to have their motives appreciated and their acts judged like other parties. If they have involved themselves in suspicion, their proceedings must be subjected to inquiry; if they have incurred just blame, be it by improper interference, or be it by unnecessary interference, they must abide the consequences;...

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