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HCMP 2737/2016
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO 2737 OF 2016
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IN THE MATTER OF pre-action discovery against CHAN FAI (陳輝) by YAU LING CHEE (邱靈芝) by her next friend CHAN WAI PING KARINA (陳偉萍) |
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and |
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IN THE MATTER OF Section 41 of the High Court Ordinance, Cap 4, and Order 24, Rule 7A of the Rules of the High Court, Cap 4A |
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BETWEEN
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YAU LING CHEE (邱靈芝) BY HER NEXT FRIEND CHAN WAI PING KARINA (陳偉萍) |
Plaintiff
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and
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CHAN FAI (陳輝) |
Defendant |
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| Before:Deputy High Court Judge Marlene Ng in Chambers |
| Date of Hearing: 25 May 2017 |
| Date of Handing Down Judgment: 31 May 2017 |
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JUDGMENT
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I. INTRODUCTION
1. Yau Ling Chee (“P”) is 89 years old. In/about 1964, P married Chan Shing (or Sing) (陳成) (“Chan Sr”). P had two stepsons being Chan Sr’s sons from his previous marriage, ie the elder Chan Pun Sin (陳本善) and the younger Chan Fai (“D”). Over the years Chan Wai Ping Karina (“NF”) understood from P that she was adopted by P’s family in Mainland China when she was an infant.[1] NF claimed P suffered from multi-type dementia and deafness, and P was/is a person under disability.
2. On 13 October 2016, P commenced the present proceedings by originating summons (“OS”) against D under section 41 of the High Court Ordinance Cap 4 (“HCO”) and Order 24 rule 7A of the Rules of the High Court (“RHC”) for pre-action discovery and inter alia the following reliefs:
(a) within 14 days of the order to be made D do make and file an affidavit stating whether the documents specified in the schedule thereto were, or any time have been, in his possession, custody, or power; and (if the documents or any of them have been, but are not now, in his possession, custody, or power) when he parted with them and what has become of them;
(b) within 21 days of the order to be made D do produce the said documents (insofar as they are within his possession, custody, or power) for inspection by the P’s solicitors and/or NF.
3. The 2 documents listed in the schedule to the OS (“Requested Documents”) were (a) P’s will purportedly made in 2008 (“P’s 2008 Will”) referred to in paragraph 42 of the Social Enquiry Report dated 30 August 2013 (“SE Report”)[2] prepared by the Director of Social Welfare (“DSW”) for NF’s application for guardianship over P (“Guardianship Application”) made to the Guardianship Board (“Board”), and (b) power of attorney purportedly made by P in favour of D (“P’s 2008 PA”) referred to in paragraph 42 of the SE Report.
4. On the same day, P filed NF’s affirmation in support of the Summons (“NF Aff”). On 14 October 2016, P also filed the Notice of Appointment to Hear OS (“Notice”) that sought the same reliefs as in the OS.
5. On 18 October 2016, the Director of Legal Aid (“DLA”) filed a Memorandum of Notification of an Application for Legal Aid that gave notice D had applied for legal aid.
6. On 25 October 2016, D’s solicitors filed acknowledgement of service giving notice of intention to defend.
7. On 29 November 2016, by consent Chung J granted directions for D and P to respectively file affirmation in opposition and affirmation in reply, and for the OS to be adjourned for argument on a date to be fixed.
8. On 6 December 2016, D filed Notice to Act in Person.
9. On 12 December 2016, DLA filed a Memorandum of Notification that a Party Has Been Refused Legal Aid that gave notice he had refused D legal aid.
10. On 13 December 2016, P’s solicitors attended before the Listing Clerk (but D was absent) to fix the adjourned hearing for argument in respect of the OS. The OS was scheduled to be heard on 25 May 2017 before this court (“Hearing”).
11. D did not file/serve any affirmation in opposition pursuant to the order of Chung J, but attended the Hearing. He orally applied to adjourn the Hearing since (a) he could not afford legal representation, (b) on 18 May 2017 he appealed against the DLA’s refusal of legal aid, and (c) such legal aid appeal was pending. Mr Leung, counsel for P, opposed the application for adjournment. At the Hearing, after hearing submissions from D and Mr Leung, I refused D’s application for adjournment and the Hearing proceeded.
12. I note the 42 days’ legal aid automatic stay of proceedings pursuant to section 15 of the Legal Aid Ordinance Cap 91 and regulation 7A of the Legal Aid Regulations Cap 91A had expired, and irrespective of the outcome of D’s legal aid appeal there was no statutory bar to proceeding with the Hearing. I further note the DLA refused D legal aid in December 2016, and no explanation was forthcoming from D as to why he did not appeal against such decision until 18 May 2017 (ie a week before the Hearing). Further, D did not file any affirmation in opposition even though (a) the order for directions by Chung J were made by consent and (b) D was legally represented at the time. D must have been aware of the directions for filing/serving affidavit in opposition. Further, given the nature of the reliefs sought in the OS (ie request for documents rather than claim for substantive relief), D’s awareness of the nature and subject matter of the present proceedings (given that he was formerly legally represented) and service of Chinese translation of Mr Leung’s skeleton submissions on D shortly before the Hearing which would aid either D’s understanding or his seeking assistance to understand P’s stance, I see no sound or persuasive reason to adjourn the Hearing. For all of the above reasons, I directed the Hearing to proceed.
II. NF AFF
13. General background NF claimed that in/about 1963 P brought her (who was then about 7 years old) to live and study in Hong Kong. Since then NF lived with P and Chan Sr (“Parents”) as her adopted parents. Before NF’s marriage in 1998, she lived with the Parents for over 30 years (except 1991-1994 when she emigrated to Canada). She claimed her relationship with the Parents had always been good. After her marriage, NF (and sometimes her husband) visited the Parents at their home at least once a week, and this lasted until about June 2011 when the Parents moved to live with D (who, to NF’s frustration, prevented her from contacting them).
14. 2001 wills NF claimed her close relationship with the Parents was demonstrated by the fact the Parents appointed her as alternative executrix when they made their wills in 2001:
(a) P executed her will on 10 November 2001 (“P’s 2001 Will”) that provided inter alia (i) Chan Sr was sole executor and trustee of the will but if he predeceased P (or died without having proved the will) NF was appointed as sole executrix and trustee of the will (clause 1), (ii) if Chan Sr survived P her entire estate would be left to him (clause 2), and (iii) if Chan Shing predeceased P her entire estate would be left to Chan Pun Sin, D and NF in equal shares (clauses 3-4);
(b) Chan Sr executed his will on the same day (“Chan Sr’s 2001 Will”) that provided inter alia (i) P was sole executrix and trustee of the will but if she predeceased Chan Sr (or died without having proved the will) NF was appointed as sole executrix and trustee of the will (clause 1), (ii) if P survived Chan Sr his entire estate would be left to P (clause 2), and (iii) if P predeceased Chan Sr his entire estate would be left to Chan Pun Sin, D and NF in equal shares (clauses 3-4).
15. On 10 November 2001, (a) P also executed a general power of attorney (“PA”) appointing NF to be her attorney in accordance with section 7 of the Powers of Attorney Ordinance Cap 31 (“PAO”), and (b) Chan Sr also executed a general PA appointing NF to be his attorney in accordance with section 7 of the PAO.
16. P’s mental condition NF claimed the available factual/medical evidence showed P is now mentally incapacitated, and it was likely that she suffered from dementia since about 2004.
17. The relevant factual evidence was largely observations by NF and other family members:
(a) In/about 2004, NF visited P about 2-3 times a week, so NF had clear impression of P’s mental condition even though she did not live with P. NF found P to have hearing/memory problems. P was noticed to talk irrelevantly,[3] and there were occasions when P was found talking to the air while alone in the washroom. In 2004, NF brought P to consult a geriatrician Dr Siu Kim Ying (“Dr Siu”) and was told P had a “brain degeneration condition” for which Dr Siu prescribed medication (Nootrophil) in the hope of slowing down the degeneration process.
(b) From 2004 to 2006, P’s mental condition visibly deteriorated as she often (day and night) shouted at home, became disoriented in time, was more and more forgetful,[4] and was unable to learn new things. There was an incident when P shouted at Chan Sr and threatened to chop him to death.
(c) In/about 2007, P started to develop urinary incontinence followed by double incontinence. She could not take bath by herself or do simple housework, and she forgot to turn off the stove when boiling water. Sharp objects were locked up to protect P from hurting herself. At about this time P started to talk about an imaginary “boy” who invited her to go out for tea, and there were 2 episodes when she left home to meet the “boy” for tea when Chan Sr was asleep.
(d) There were 2 occasions between 2005 and 2011 when P left home on her own, could not find her way back, and was finally found wandering on the streets.
(e) In/about 2008, P underwent an assessment by the Social Welfare Department (“SWD”). According to the SWD’s...
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