Re BKR

• Jurisdiction: Singapore
• Judge: Lai Siu Chiu J
• Judgment Date: 01 October 2013
• Neutral Citation: [2013] SGHC 201
• Court: High Court (Singapore)
• Docket Number: Originating Summons (Family) No 71 of 2011 (Registrar’s Appeals Subordinate Courts Nos 223 and 224 of 2012)
• Published date: 22 October 2013
• Year: 2013
• Hearing Date: 19 March 2013,21 March 2013,26 February 2013,22 February 2013,21 February 2013,25 February 2013,20 March 2013,05 March 2013
• Plaintiff Counsel: Lee Eng Beng SC, Kelvin Poon, Low Poh Ling and Wilson Zhu (Rajah & Tann LLP)
• Defendant Counsel: Alvin Yeo SC, Aw Wen Ni, Wendy Lin, Monica Chong, Chan Xiao Wei (WongPartnership LLP),Sarjit Singh Gill SC, Terence Seah, Benjamin Ng (Shook Lin & Bok LLP)
• Subject Matter: Courts and Jurisdiction,District Court,Mental Disorders and Treatment
• Citation: [2013] SGHC 201

Lai Siu Chiu J: Introduction

These were appeals to the High Court by way of Registrar’s Appeals Subordinate Courts Nos 223 and 224 of 2012 (“RAS 223/2012” and “RAS 224/2012” respectively, and collectively “the Appeals”) against the decision of a Senior District Judge in Originating Summons (Family) No 71 of 2011 (“OSF 71/2011”). The Appeals relate to an application taken out in the court below (“the application”) under the Mental Capacity Act (Cap 177A, 2010 Rev Ed) (“MCA”) for the plaintiffs to be appointed as deputies of their sister [BKR] in relation to her property and affairs. The Senior District Judge found, inter alia, that [BKR] lacked mental capacity as she was unable to decide on her property and affairs because of an impairment or disturbance in the functioning of her brain, and thus granted the application.

At the trial below and at the hearing of the Appeals before this court, parties raised a whole host of incidents and issues. I found a number of those issues irrelevant to the main crux of the Appeals (as they were at the hearings below), but shall address them nonetheless since they were raised. While it was commendable of counsel to leave no stone unturned in their preparation for the case of their respective client(s) in the Appeals, a certain amount of discretion should have been exercised as to what facts and issues were really essential. The court is not in favour of a “lock, stock and barrel” approach in litigation. In preparing their cases, counsel is duty-bound to advise their clients as to what really matters, so as not to prolong proceedings unnecessarily.

After taking time to consider the parties’ lengthy arguments, I am allowing both Appeals.

The facts

The parties and their relationships have been succinctly described in the Senior District Judge’s decision and there is no need to repeat them in any detail. If necessary, the parties will be identified where they concern specific findings made by the Senior District Judge. For ease of reference, I shall refer to the main parties in the following manner: [AUR], who was the first plaintiff in the trial below, and the first respondent in the Appeals; [CY], who was the second plaintiff in the trial below, and the second respondent in the Appeals; [AUT], who was the first defendant in the trial below, and the first appellant in RAS 224/2012. [AI], who was the second defendant in the trial below, and the second appellant in RAS 224/2012; and [BKR], who was the third defendant in the trial below, and the appellant in RAS 223/2012. Together with the Appeals, the plaintiffs filed for hearing before this court Summons No 331 of 2013 (“the plaintiffs’ application”) to strike out RAS 223/2012 on the ground that [BKR] lacked capacity to instruct solicitors to file an appeal on her behalf, pursuant to O 99 r 4 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the Rules”).

In response to the plaintiffs’ application, [BKR] filed Summons No 2535 of 2013 (“the third defendant’s application”) under O 99 r 8 of the Rules, applying for leave to appoint a litigation representative. I declined to grant the plaintiffs’ application but granted the third defendant’s application to appoint a named third party as her litigation representative in RAS 223/2012 and all ancillary matters.

I should observe at this juncture that in arguing their clients’ cases, parties had drawn this court’s attention (as in the court below) to innumerable incidents leading up to OSF 71/2011, primarily to persuade the court to draw a legal conclusion on the lack of mental capacity of [BKR] and/or the purported undue influence/manipulation by [AUT] and [AI] over [BKR]. The court below had made various findings in relation to those events. Rather than set them out here, I shall elaborate on those findings when addressing the defendants’ arguments in the Appeals.

The decision below

In coming to her decision, the Senior District Judge considered two main threads of evidence. The first thread related directly to [BKR]’s mental capacity, and comprised: evidence on [BKR]’s mental capacity starting with reports by her Hong Kong doctors in October 2005 and 2009, and also medical reports from October 2010 to February 2011 in relation to her capacity to create a trust; evidence on [BKR]’s mental capacity from her Singapore medical experts based on their assessments of her conducted in March, June and December 2011, and February 2012; evidence given in the court below by [BKR] from 12 to 21 February 2012; evidence of the plaintiffs’ medical experts; evidence of the bankers who dealt with [BKR] from mid-2009 till end-2010; and evidence of the family members of [BKR].

The second thread of evidence concerned contemporaneous events from late-2008 until the first quarter of 2011 in the intra-family relationships of [BKR]. This related somewhat to the (irrelevant) incidents I have mentioned at [2] above. The Senior District Judge drew certain inferences of [BKR]’s mental capacity from her behaviour in those incidents. However, parties often gave conflicting accounts of the same events. Hence, the Senior District Judge also went further at times to make certain factual determinations which were generally unrelated to the mental capacity of [BKR] and should not have been taken into consideration in reaching her decision.

After considering both threads of evidence, the Senior District Judge found that [BKR] lacked mental capacity to make decisions on her property and affairs. Attendant thereto, the Senior District Judge also found that [BKR] did not have the capacity to litigate. She then appointed both plaintiffs as [BKR]’s deputies to act in respect of her property and affairs. The powers granted to them as deputies were generally very wide

The issues in the Appeals

There are three broad issues before this court: Did the Senior District Judge err in law and in fact in finding that she had the jurisdiction to entertain OSF 71/2011, including the issues of purported undue influence (“Issue 1”)? Did the Senior District Judge err in law and in fact in applying the principles of the MCA wrongly, when considering the medical evidence and other contemporaneous events (“Issue 2”)? Did the Senior District Judge err in law in the appointment of deputies and the scope of the powers granted (“Issue 3”)? Given the length of my decision and for good order, I summarise briefly my findings pertaining to these three issues. Under Issue 1, I find that the Senior District Judge did not have the jurisdiction to entertain OSF 71/2011 or the issues of purported undue influence. Under Issue 2, I find that the Senior District Judge had misapplied the principles of the MCA, and therefore erred in law in finding that [BKR] was unable to make a decision under the MCA (this is the functional component of the applicable legal test, as will be addressed later). Finally, under Issue 3, given that the Appeals would have been allowed based on my findings under Issue 1 and/or Issue 2, I observe that the declarations of incapacity (and consequently the powers granted to the deputies) were too wide. I would add that the Senior District Judge should have accorded more weight to [BKR]’s present wishes.

Issue 1 – Did the Senior District Judge err in law and in fact in finding that she had the jurisdiction to entertain OSF 71 including the issues of purported undue influence? The Law The jurisdiction of the Senior District Judge

The issue of jurisdiction is often raised by counsel as a threshold issue in many cases. However, the concept is often misunderstood, and many a time arguments of jurisdiction have been misconceived. As described by the Court of Appeal in Re Nalpon Zero Geraldo Mario [2013] 3 SLR 258 (“Nalpon”) (at [11]), the word “jurisdiction” is an etymological chameleon that often takes colour from its context. Indeed, as a legal term, it is clear that it has been used to mean many things. For example, Prof Yeo Tiong Min suggests at least six different ways in which the word “jurisdiction” has been employed (see “Jurisdiction of the Singapore Courts” in The Singapore Legal System (Singapore University Press, 2nd Ed, 1999) (Kevin Y L Tan ed)).

Nalpon concerned an appeal against the decision of Chan Sek Keong CJ made pursuant to an application under s 82A(5) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”). Before the Court of Appeal, a preliminary issue of whether there could even be an appeal from a decision made under s 82A(5) of the LPA was raised. The issue therefore concerned the jurisdiction of the Court of Appeal. After some discussion, the Court of Appeal in Nalpon (at [13]) adopted the definition of “jurisdiction” in Muhd Munir v Noor Hidah and other applications [1990] 2 SLR(R) 348 (at [19]):

The jurisdiction of a court is its authority, however derived, to hear and determine a dispute that is brought before it.

The court in Nalpon went on to repeat the trite principle that the jurisdiction of a court is primarily derived from statute (see also Ng Chye Huey and another v Public Prosecutor [2007] 2 SLR(R) 106; Blenwel Agencies Pte Ltd v Tan Lee King [2008] 2 SLR(R) 529; Law Society of Singapore v Top Ten Entertainment Pte Ltd [2011] 2 SLR 1279).

The jurisdiction of the District Court to hear cases involving mental capacity is derived from paras 2 and 3 of the Supreme Court of Judicature (Transfer of Mental Capacity Proceedings to District Court) Order 2010 (S 104/2010), which provide that:

Proceedings transferred to District Court 2.—(1) Subject to sub-paragraph (2), any proceedings under the Mental Capacity Act 2008 (Act 22 of 2008) commenced in the High Court on or after 1st March 2010 shall be transferred to and be heard and determined by a District Court.

(2) Where any application under the Mental Capacity Act 2008 is made, on or after 1st March 2010, in relation to any proceedings commenced in the High...