RE FKS

RE FKS

In Part II MHO proceedings the court will generally refuse cross-examination on affidavit where the disputes raised are complex financial matters unsuitable for the Part II forum, and where a decision on the applicant's fitness can properly be reached on the basis of affidavit and documentary evidence; granting...

Source-derived case information.

Citation
[2021] HKCFI 1641
Parties
Applicant (seeking Appointment as Committee): A; Respondent (opposed to Appointment): D; Alleged Mentally Incapacitated Person: FKS
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
11 June 2021
Case Number
HCMH40/2020
Procedural Posture
Application Under Part II of the Mental Health Ordinance (appointment of Committee) / Interlocutory Decision on Cross Examination Summons (pre Substantive Hearing)
Outcome
Cross Examination Summons dismissed; costs awarded to Applicant
Legal Topics
Appointment of Committee, Cross Examination on Affidavit, Part II Mental Health Ordinance Procedure, Costs
Source Language
en
Mental Health Law Civil Procedure Guardianship and Capacity Appointment of Committee Cross Examination on Affidavit Part II Mental Health Ordinance Procedure Costs

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Parties

A

Applicant (seeking Appointment as Committee)

D

Respondent (opposed to Appointment)

FKS

Alleged Mentally Incapacitated Person

Procedural Posture

Application Under Part II of the Mental Health Ordinance (appointment of Committee) / Interlocutory Decision on Cross Examination Summons (pre Substantive Hearing)

Legal Issues

  1. 1 Whether the court should order attendance for cross-examination of the applicant on her affidavits
  2. 2 Whether Part II MHO proceedings are an appropriate forum to resolve allegations of financial misappropriation
  3. 3 Whether the applicant is a fit and proper person to be appointed committee having regard to allegations of dishonesty and conflict of interest

Ratio Decidendi

In Part II MHO proceedings the court will generally refuse cross-examination on affidavit where the disputes raised are complex financial matters unsuitable for the Part II forum, and where a decision on the applicant's fitness can properly be reached on the basis of affidavit and documentary evidence; granting cross-examination would be disproportionate, cause delay, increase costs and would not be in the best interests of the alleged mentally incapacitated person.

Court Disposition

Cross Examination Summons dismissed; costs awarded to Applicant

Orders

  • Cross Examination Summons dismissed
  • Costs of this application to be paid by D to A, to be summarily assessed