 [2024] HKCFI 2713 concerned an application made by a relative of a mentally incapacitated person (“MIP”) to direct the Committee of the MIP to sell certain assets of the MIP to himself, invoking the Court’s mental health jurisdiction under the Mental Health Ordinance (Cap 136) (“MHO”).

Fung J reiterated the principles governing proceedings under Part II of the MHO:

(1) The jurisdiction under Part II MHO is protective and conservative. It is essentially to maintain the 

 and the assets and properties of the MIP, subject to sale or disposal to such extent as to provide the liquidity needed in the care and maintenance of the MIP.

(2) Proceedings under Part II are not ordinary adversarial litigation in which parties assert their respective rights. The proceedings are for the management of the properties and affairs of the MIP where the paramount consideration is the interests and requirements of the MIP. An MHO application is therefore not the proper forum for the resolution of 

(3) Although the Committee and the Court may, in appropriate circumstances, consider the views of the relatives of the MIP, such relatives do not have any right that can be enforced in the context of Part II proceedings. The beneficiary of the estate is the MIP, not the relatives. A relative is therefore not in a position to impose his or her wish on how the property is to be managed.

(4) The Court exercising its supervisory jurisdiction may take into account information provided by interested parties. But the object is to foster the best interest of the MIP rather than to accede to the sectorial interests of the MIP’s relatives. It is certainly not a curtain-raiser to any testamentary contest between beneficiaries of the MIP’s estate.

Applying these principles to the facts, Fung J dismissed the relative’s application. Among other things, his Lordship noted that the parties still had differences regarding the proper valuation of the MIP’s assets. The Committee may continue to further negotiate with the relative to achieve terms that are in the MIP’s best interest, but the Court should not be drawn into the parties’ business negotiations. Fung J also noted that some other family members of the MIP were not enthusiastic about the proposed sale of the assets. While the Court would step in if the Committee were in dereliction of duties or clearly not acting in the MIP’s interest, Fung J did not find that to be the present case.

, instructed by Herbert Smith Freehills, acted for the Committee. Eugene Fung SC has also been involved in the proceedings, acting for the Committee.

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Part II Mental Health Ordinance Proceedings Not to be Used to Further Relatives’ Sectorial Interests

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