A v.警務副處長(行動) AND OTHERS

A v.警務副處長(行動) AND OTHERS

Based on contemporaneous medical reports from Dr Poon and Dr Wong concluding the applicant is mentally incapacitated/mentally handicapped within the Mental Health Ordinance and therefore a person under disability under Order 80, and because the applicant failed to adduce contrary medical evidence, the court must stay the proceedings until she is no longer a person under disability or is represented by a next friend or guardian ad litem (who must act by a solicitor as required).

Citation
A v.警務副處長(行動) AND OTHERS
Parties
Applicant: A; 1st Respondent (ceased): 接替黄偉綸在職業訓練局常務委員會當委員的教育局副秘書長; 2nd Respondent (ceased): 教育局; 3rd Respondent: 職業訓練局; 1st Putative Respondent: 警務副處長(行動); 2nd Putative Respondent: 獨立監察警方處理投訴委員會; 3rd Putative Respondent: 平等機會委員會
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
22 December 2016
Case Number
HCMP839/2015
Procedural Posture
Civil Appeals and Miscellaneous Application for Judicial Review Heard Together / Determination Whether Applicant Is a Person Under Disability and Whether Representation by Next Friend/guardian Ad Litem Is Required and Proceedings Must Be Stayed
Outcome
Proceedings stayed
Legal Topics
Person Under Disability, Next Friend, Guardian Ad Litem, Order 80 Rules (cap 4 A), Mental Health Ordinance (cap 136) Definitions, Stay of Proceedings, Medical Evidence on Capacity
Source Language
EN
Civil Procedure Mental Health Law Administrative Law Person Under Disability Next Friend Guardian Ad Litem Order 80 Rules (cap 4 A) Mental Health Ordinance (cap 136) Definitions +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

A

Applicant

接替黄偉綸在職業訓練局常務委員會當委員的教育局副秘書長

1st Respondent (ceased)

教育局

2nd Respondent (ceased)

職業訓練局

3rd Respondent

警務副處長(行動)

1st Putative Respondent

獨立監察警方處理投訴委員會

2nd Putative Respondent

平等機會委員會

3rd Putative Respondent

Procedural Posture

Civil Appeals and Miscellaneous Application for Judicial Review Heard Together / Determination Whether Applicant Is a Person Under Disability and Whether Representation by Next Friend/guardian Ad Litem Is Required and Proceedings Must Be Stayed

Legal Issues

  1. 1 Whether the applicant is a person under disability within Order 80 Rule 1 and thus must be represented by a next friend or guardian ad litem under Order 80 Rule 2(2) and 2(3)
  2. 2 Whether, after proceedings have begun, the court must appoint a next friend or guardian ad litem under Order 80 Rule 3(5) when a party becomes mentally incapacitated
  3. 3 Whether the medical evidence establishes the applicant is mentally incapacitated within the meaning of the Mental Health Ordinance and Order 80

Ratio Decidendi

Based on contemporaneous medical reports from Dr Poon and Dr Wong concluding the applicant is mentally incapacitated/mentally handicapped within the Mental Health Ordinance and therefore a person under disability under Order 80, and because the applicant failed to adduce contrary medical evidence, the court must stay the proceedings until she is no longer a person under disability or is represented by a next friend or guardian ad litem (who must act by a solicitor as required).

Court Disposition

Proceedings stayed

Orders

  • Stay the proceedings in CACV 88/2011, CACV 111/2012 and HCMP 839/2015 until the applicant is no longer a person under disability or is represented by a next friend or guardian ad litem