Transfer of property of mentally incapacitated person residing out of Hong Kong
Recently, applications under Part II of the Mental Health Ordinance (Cap. 136) (“MHO”) have become more prevalent and a body of case law has been developed in this regard. However, there is considerably less guidance on applications under section 23 of the MHO.
The recent case of Re: WX [2026] HKCFI 1589 provides a useful summary and guidance on future section 23 of the MHO applications. In this article, we will explore the case in detail. For a copy of the Judgment, please see the link below:-
Background
- WX (“MIP”) was born in the Mainland.
- In November 2024, MIP fell into a coma state while she was in Beijing. She has since been hospitalised and became totally dependent for care.
- On 28 February 2025, MIP’s parents were appointed by the Mainland Court as her guardians and it was declared that the MIP lacks mental capacity to carry out civil acts.
- The MIP owns assets held in banks and securities companies in Hong Kong.
- On 4th July 2025, the Mother of the MIP commenced proceedings for an order under section 23 of the MHO.
Section 23 of the MHO
Section 23 of the MHO provides:
“Transfer of property of mentally incapacitated person residing out of Hong Kong
Where any property situate in Hong Kong is standing in the name of or vested in any person residing out of Hong Kong, the Court, upon being satisfied that such person has been declared to be mentally incapacitated and that his personal estate has been vested in a committee, curator or manager according to the laws of the place where he is residing, may order some fit person to make such transfer of the property, or of any part thereof, to such committee, curator or manager or otherwise, and also to receive and pay over any proceeds or profits thereof as the Court may think fit; and any act done in pursuance of such order shall be valid and effectual for all purposes.” (emphasis added)
In Re LYO [2005] 3 HKC 201, the Court gave the following explanation with regards to section 23 of the MHO:-
- The jurisdiction can only be evoked when a committee, curator or manager has been properly appointed according to the law of the place where the mentally incapacitated person resides.
- The foreign committee or curator has no authority to deal with immovable properties or title therein held in the name of the mentally incapacitated person situated here.
- The section 23 MHO order is limited to directing some fit person to make transfer of the movable property as well as to receive and pay over any proceeds or profits of the property to the foreign committee or curator.
- It is the discretion exercised by the Mental Health Court (“MH Court”).
Takeaways
- For satisfying the MH Court that the order made by the court appointing the foreign committee or curator or manager or otherwise has legal effect as provided in section 23 of the MHO, it is prudent to provide a relevant foreign law opinion as evidence in support.
- Appointing a senior member of the firm of solicitors (who is also a fit person) acting for the applicant or alternatively a relative may still be straightforward options for the purpose of section 23 of the MHO.
- If an applicant is minded to seek an order for the banks or securities companies to transfer the property, the applicant should ascertain their stance and terms of effecting the direct transfer if so directed by the court.
- The court may impose terms in respect of report of completion of the transfer together with documentary proof.
Conclusion
In light of the further guidance offered to legal practitioners in Re: WX [2026] HKCFI 1589, extra care should be taken when taking out an application under section 23 of the MHO to ensure compliance with the requirements of the MH Court to expedite the matter.
Should you have any enquiries, we are pleased to assist you in the relevant matter.
