RE SHANG KIANG YUEN

RE SHANG KIANG YUEN

Section 8(2) of the Supreme Court Ordinance was not impliedly repealed by the Mental Health Ordinance; read with s.77 Cap. I the reference to the Lunacy and Mental Treatment Acts imports the Mental Health Act 1959 as the operative English statute; judges in Hong Kong therefore have jurisdiction to appoint a receiver...

Source-derived case information.

Citation
RE SHANG KIANG YUEN
Parties
Patient: Shang Kiang Yuen; Applicants (first Applicants): First applicants (wife and son of Shang Kiang Yuen); Applicants (second Applicants): Shang Wai Kwang & Shang Ray Ziang
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
30 May 1968
Case Number
HCMP60/1968
Procedural Posture
Miscellaneous Proceedings Application for Appointment of Receiver / Application in Chambers; Interlocutory Ruling on Jurisdiction (16 Apr 1968) and Stay Application Refused (30 May 1968); Appeal Filed by Second Applicants
Outcome
Judge held he has jurisdiction under s.8(2) Cap.4 read with s.77 Cap.I to appoint a receiver under s.105 of the Mental Health Act 1959; application for stay of proceedings pending appeal was refused.
Legal Topics
Appointment of Receiver, Jurisdiction of Courts Under Reference to English Acts, Repeal by Implication, Construction of References to Amended Imperial Statutes, Appointment of Committee Under Mental Health Ordinance, Appealability of Interlocutory Decisions
Source Language
en
Mental Health Law Probate and Estate Administration Civil Procedure Statutory Interpretation Appointment of Receiver Jurisdiction of Courts Under Reference to English Acts Repeal by Implication Construction of References to Amended Imperial Statutes +2 more

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Parties

Shang Kiang Yuen

Patient

First applicants (wife and son of Shang Kiang Yuen)

Applicants (first Applicants)

Shang Wai Kwang & Shang Ray Ziang

Applicants (second Applicants)

Procedural Posture

Miscellaneous Proceedings Application for Appointment of Receiver / Application in Chambers; Interlocutory Ruling on Jurisdiction (16 Apr 1968) and Stay Application Refused (30 May 1968); Appeal Filed by Second Applicants

Legal Issues

  1. 1 Whether the Supreme Court of Hong Kong has jurisdiction under s.8(2) of Cap.4 to appoint a receiver for an incapable person after repeal of the Lunacy Acts in England
  2. 2 Whether s.8(2) of the Supreme Court Ordinance was impliedly repealed by the Mental Health Ordinance 1960 or displaced by local legislation
  3. 3 If jurisdiction exists, whether the appointment is made under the Lunacy Acts or under the Mental Health Act 1959 (as read into s.8(2) by s.77 Cap.I)

Ratio Decidendi

Section 8(2) of the Supreme Court Ordinance was not impliedly repealed by the Mental Health Ordinance; read with s.77 Cap. I the reference to the Lunacy and Mental Treatment Acts imports the Mental Health Act 1959 as the operative English statute; judges in Hong Kong therefore have jurisdiction to appoint a receiver under s.105 of the Mental Health Act 1959 (not under the now repealed Lunacy Acts). An interlocutory oral objection to jurisdiction in chambers does not constitute a separately appealable 'proceeding' under s.29 so a stay pending appeal was refused.

Court Disposition

Judge held he has jurisdiction under s.8(2) Cap.4 read with s.77 Cap.I to appoint a receiver under s.105 of the Mental Health Act 1959; application for stay of proceedings pending appeal was refused.

Orders

  • Ruling (16 April 1968): Application properly made under s.8(2) Cap.4; court has jurisdiction to appoint a receiver under s.105 Mental Health Act 1959.
  • Order (30 May 1968): Application for stay of proceedings pending the appeal refused; proceedings to continue; liberty to argue costs.