Chan Sze Wing v. Tsang Pui Chong and Others

HCMP 1441/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1441 OF 2016

(ON AN INTENDED APPEAL FROM DCPI NO 2692 of 2009)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.This application is remarkable for the very substantial delay on the part of the 1^st and 2^nd Defendants. On 7 June 2016, they (through their solicitors) issued a summons seeking leave to appeal against a judgment of Deputy District Judge Leong [“the Judge”] handed down on 23 March 2012 in DCPI No 2692 of 2009. There had been a lapse of more than 4 years between the date of judgment and the date of the summons. By that judgment, the Judge found these defendants liable to the Plaintiff and entered judgment in favour of the Plaintiff in the sum of $149,550 with costs.

2.The delay is even more remarkable bearing in mind that these defendants (represented by counsel) had actually made an application for leave to appeal out of time before the Judge on 30 May 2014 (more than 2 years after the judgment) and that application was heard on 16 July 2014.  By a decision handed down on 19 August 2014, the Judge refused to grant leave and ordered the Defendants to pay the costs of the application.  After that, nothing whatsoever was done by these defendants to pursue the intended appeal until the summons of 7 June 2016.

3.In the meantime, the costs of the action and the unsuccessful application for leave to appeal were taxed by a taxing master in 2015.  The taxed costs come up to $594,339.67. 

4.In her affirmation (in Chinese) of 25 May 2016 filed in support of the application for leave before us, the 1^st Defendant attempted to explain the delay in the application at paragraphs 22 to 38.  She gave a history of the difficulties encountered by her in getting effective legal assistance.  It is not necessary for us to recite what she said at length.  In any event, it is quite clear (particularly in light of her failed attempt to get leave before the Judge in 2014 when she was represented by counsel, who must have advised her on the implications of delay in lodging appeal) that she was aware of the importance of proceeding with expedition and that she was seriously out of time by then. 

5.She put the blame on the lawyers she had consulted for not making much progress since the failure to obtain leave in 2014.  In our judgment, it is not a good excuse.  As we shall see below, her intended appeal is not meritorious.

6.At paragraph 39 of her affirmation, the 1^st Defendant referred to the Plaintiff not taking any enforcement action in respect of the judgment.  This is not entirely correct.  As we have seen, the legal costs in the action was taxed pursuant to the judgment and that process of taxation was only completed in 2015, see paragraphs 20 and 21 of her affirmation.

7.Because of the long inexcusable delay, this court would only grant extension of time to appeal if the intended appeal carries a real prospect of success: Secretary for Justice v Hong Kong & Yaumati Ferry [2001] 1 HKC 125. 

8.We are not satisfied that the intended appeal has a real prospect of success.

9.In the draft Notice of Appeal attached to the Summons of 7 June 2016, the Defendants relied on 6 grounds of appeal, which can broadly be summarized as follows:

(a)  The Judge erred in concluding that Plaintiff had not been suffering from 虛寒病, by paying undue regard to Plaintiff’s expert opinion.

(b)  The Judge erred in holding that acupuncture performed by the 1^st Defendant had directly caused or substantially triggered the Plaintiff’s Systemic Lupus Erythematosus [“SLE”] symptoms by failing to take into account the fact that there was no direct and concrete evidence to support such a conclusion.

(c)  The Judge erred in finding that the Plaintiff’s blisters were manifestation of SLE.

(d)  The Judge erred in finding that the medicine prescribed by 1^st Defendant had directly caused or substantially triggered the Plaintiff’s SLE symptoms by ignoring that fact that there was no pharmacological report to support such a conclusion and that the Plaintiff had previously suffered from arthritis.

(e)  The Judge erred in excluding the possibility of the medicine prescribed by Mr Chan (another practitioner of Chinese medicine) and Dr Ting causing the onset of P’s symptoms by ignoring the fact that P had suffered from some symptoms a few months before receiving treatments from the 1^st Defendant.

(f)  The Judge erred in finding a causal relationship between the medicine prescribed by the 1^st Defendant and the onset of the Plaintiff’s symptoms by paying undue regard to the expert reports and by confusing the term SLE with drug-induced lupus erythematosus (DILE).

10.It can readily be seen that the Defendants intend to challenge the findings of fact by the Judge.  The intended appeal can only succeed if the Defendants can satisfy this court that the Judge had made palpable errors in making those findings, see China Gold Finance Ltd v CIL Holdings Ltd & Ors CACV 11/2015, 27  November 2015 and Hoptai Sharkfins Co Ltd v Productos Pesqueros Gallegos, SL CACV 2740/2014, 7 December 2015. 

11.We have read the submissions of Mr Ho dated 7 June 2016.  In the submissions counsel elaborated on the grounds of appeal.  However, the points made by counsel are mostly directed to the weighing of evidence which, as this court has repeatedly said, is primarily a matter for the trial judge.  It is not the function of this court to engage in another weighing exercise when no palpable error can be identified. 

12.In the judgment, the Judge explained why he came to the finding that the 1^st Defendant failed to meet the standard of a reasonably competent practitioner of Chinese medicine by reference to the evidence before him, including the evidence of the experts on Chinese medicine.  The Judge made the finding that the 1^st Defendant had made a wrong diagnosis and prescribed the wrong medicine for the Plaintiff.  Having read the relevant expert evidence, we are satisfied that there was evidence before the Judge supporting his conclusion. 

13.Based on the evidence before the court, in particular the timing of the onset, the Judge concluded that the medicine prescribed by the 1^st Defendant had caused or triggered the onset of her SLE symptoms, see paragraph 60 of the judgment.  We do not agree with Mr Ho’s submission that the Judge had misunderstood the report of Dr Chiang.  Nor do we accept the submission that the Judge had failed to have regard to the medical history of the Plaintiff.  The Judge had recited the relevant history at paragraphs 4 to 11 of the judgment.  The Judge gave his judgment soon after the conclusion of the trial (the trial took place from 6 to 10 February 2012 and he delivered his judgment on 23 February 2012) and he was not obliged to set out each and every part of the Plaintiff’s evidence in his judgment.   

14.Since it was a civil case, the Judge was correct in making findings on the balance of probabilities.  The absence of a pharmacological report could not militate against the Judge’s findings.  The Defendants had not adduced any expert evidence on western medicine at the trial to put forward other possible causes for the onset of the symptoms.  Mr Ho’s reference to the medical report of 1 August 2008 could not avail the Defendants in such circumstances.  The Judge was entitled to rely on the evidence of Dr Chiang that the symptoms were consistent with SLE and also rely on the contemporaneous medical reports of the Plaintiff and her evidence to conclude as he did at paragraph 60 of the judgment.

15.There was no reference to DILE at the trial and we simply cannot see any basis for such evidence-sensitive point to be raised at this very late stage.

16.For these reasons, we refuse to grant extension of time to the Defendants and dismiss the summons of 7 June 2016.

17.We are also of the view that the application is totally without merit and we make an order pursuant to Order 59 rule 2A(8) of the Rules of High Court that no party may request this determination to be reconsidered at an oral hearing inter partes.

No written submission from Ivan Tang & Co, for the plaintiff

Written submissions by Mr Alan Ho, instructed by Tong & Lawyers, for the 1^st and 2^nd defendants