Daimler Ag (Formerly Known As Mercedes-benz Ag) v. Helge Herbert Leiduck Appointed By Order To Represent the Estate of Herbert Heinz Horst Leiduck, Deceased and Another
Read the full judgment text of HCA 4089/1994 on BabelCite. This High Court CFI judgment was delivered on 15 June 2016.
1. Before the court is what has become known in these proceedings as the “ competency issue ” which encompasses the following questions:
Cites 5 cases
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HCA 4089/1994 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 4089 of 1994 __________________
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__________________ J U D G M E N T __________________ The Competency Issue 1.Before the court is what has become known in these proceedings as the “competency issue” which encompasses the following questions:
2.The answers to questions (1)[2] and (4)[3] have since lost significance as Mr Leiduck never resumed giving evidence after 22 August 2013 (save that his condition in January and February 2014 as observed by Dr Förstl might throw light in the retrospective assessment of his mental health in the preceding years). 3.With regard to question (3), Mr Leiduck signed statements of truth to verify the defendants’ pleadings; answered interrogatories administered by the plaintiff on oath; swore/signed affidavits/witness statements and gave viva voce testimony from a business centre in Germany (where he resided) via video link as follows:[4]
4.Section 3(b) of the EO provides as follows:
5.The competency issue, including the terms of question (3) and the written evidence to be included in that question (see para 3 above), was drafted by agreement between the parties and approved by me by para 1 of the Order dated 5 November 2013 as amended on 24 December 2014. 6.Although the relevant dates in question (3) were identified by agreement between the parties after the hearing on 5 November 2013 and it was the plaintiff who specifically asked for the dates when Mr Leiduck signed the statements of truth relating to the defendants’ pleadings to be included in question (3),[5] Mr John Yan SC (leading Ms Sara Tong) pointed out in their closing submissions on the competency issue that EO section 3(b) prevents persons who are incompetent within its meaning from giving evidence and a person is not giving evidence by signing a statement of truth in respect of a pleading or an answer to interrogatory. 7.On reflection, I tend to agree that one is not, in ordinary parlance, giving evidence in signing a statement of truth verifying a pleading so that section 3(b) has no application to such an act.
8.As Mr Leiduck was not giving evidence when he signed the statements of truth respecting the defendants’ pleadings, there is no need to investigate his competence as a witness when he signed those statements of truth on 16 November 2010, 15 December 2012 and 23 January 2013. 9.Answers to interrogatories, however, stand on a different footing, to which section 3(b) applies.
I shall therefore have to inquire into Mr Leiduck’s competency when he signed the Answers to Interrogatories on 28 January 2013. These Proceedings 10.This action was commenced on 30 April 1994 by the plaintiff (then known as Mercedes Benz AG) to recover certain monies[7] (together with interest) that had been advanced by it to one Intercontinental Resources Societé Anonym Monegasque (“IRSAM”), a company incorporated in the Principality of Monaco and of which Mr Leiduck was the sole owner and president, pursuant to an agreement contained in or evidenced by a letter dated 8 July 1993 from the plaintiff to IRSAM. 11.Prior to the issue of the writ of summons herein on 30 April 1994, on 29 April 1994, the plaintiff applied for and obtained a mMareva injunction (“injunction”) against both Mr Leiduck and Intercontinental Resources Company Limited (“IRC”), a company incorporated in Hong Kong and of which Mr Leiduck was a 99.998% shareholder and a director, upon the usual cross‑undertaking as to damages (“undertaking”). 12.The injunction was applied for and granted on the strength of an affidavit made on 29 April 1994 by Mr Paul John Carolan, then a partner of Baker & McKenzie (“B&M”), former solicitors for the plaintiff. More particularly, the plaintiff joined IRC as the 2nd defendant and sought to attach IRC with liability as a constructive trustee on the basis that it had received information from one Jacques Lefort (“Lefort”), a magistrate in Monaco investigating various criminal complaints against Mr Leiduck, that US$6 million of the monies paid by the plaintiff to IRSAM had been misapplied towards the repayment of a loan of which IRC was a co‑borrower in July 1993. 13.In fact, this information was wrong. The monies advanced by the plaintiff to IRSAM had not been used by or for the benefit of IRC. 14.By a letter dated 14 May 1994 from B&M to IRC’s then solicitors, the plaintiff advised IRC that it would have the injunction discharged as against IRC and would not resist an order for costs in favour of IRC provided that IRC would not claim damages pursuant to the undertaking. The parties’ solicitors then agreed over the telephone and confirmed by letters on 16 May 1994 that the plaintiff would pay IRC’s costs and disbursements on an indemnity basis and that IRC would make no claim for damages pursuant to the undertaking (“settlement agreement”). 15.The injunction was discharged by consent, and the action discontinued, as against IRC on 17 May and 22 August 1994 respectively. 16.As against Mr Leiduck, the service of the writ of summons herein on him in Monaco was, after the plaintiff’s unsuccessful appeals to the Court of Appeal and Privy Council, finally set aside and the injunction against Mr Leiduck discharged on 26 July 1995 for want of jurisdiction over him by the Hong Kong courts. Defendants’ Application and Case for an Inquiry as to Damages Caused to them by the Injunction 17.Then, after the lapse of more than 10 years, by a summons issued on 23 July 2007, in enforcement of the undertaking, the defendants apply for an inquiry as to the damages suffered by them by reason of the injunction and for payment of the sum(s) found due upon such inquiry. 18.It is unnecessary for present purposes for me to set out the defendants’ entire case for an inquiry as to damages. I shall identify only those aspects to which Mr Leiduck’s evidence may relate. 19.First, on liability, having agreed not to enforce the undertaking, it is incumbent upon IRC to have the settlement agreement set aside before it can claim damages. In this regard, IRC’s case for setting aside the settlement agreement is premised partly[8] upon:
20.As for damages, the defendants claim damages under 2 heads. Firstly, Mr Leiduck or alternatively IRC claim to have suffered loss of profits (in the form of commissions to the tune of €90 million minus expenses) under a housing development project to build 15,000 houses in the Leningrad and Tula regions of Russia for the Russian Armed Forces withdrawing from East Germany following the dissolution of the Warsaw Pact (“housing project”). 21.Secondly, it is also the defendants’ case that the injunction ruined IRC. IRC claims damages for loss of the value of its business. Alternatively, Mr Leiduck, holding 99,998 out of the 100,000 shares of and in IRC, claims to have lost the opportunity to sell his IRC shares. Mr Leiduck’s Evidence 22.To put the discussion and assessment of Mr Leiduck’s competence as a witness in context, it is useful to have an outline of his evidence. 23.In this regard, for reasons that will become apparent shortly (see para 94‑96 below), it is not necessary for me to be concerned with Mr Leiduck’s testimony in court. 24.Turning then to his written evidence, I note at the outset that much of Mr Leiduck’s affidavits, witness statements and answers to interrogatories (though voluminous) in fact dealt with many matters that are strictly speaking irrelevant (or have since become irrelevant) to the defendants’ claim for damages against the plaintiff pursuant to the undertaking (and which I shall for such reason have to ignore in deciding whether the defendants are entitled to an inquiry of damages). Obvious examples include Mr Leiduck’s version of the transaction giving rise to the plaintiff’s substantive claims against him in this action and how and why it did not go through; what Mr Leiduck saw as the plaintiff’s persecution of him, including the pursuit of criminal complaints and prosecution against him in Monaco; the treatment received by Mr Leiduck under the criminal justice system in Monaco particularly his incarceration in a Monegasque prison for 33 months from 19 October 1993 to 22 June 1996 without trial, followed by convictions of charges which Mr Leiduck said were trumped up before the criminal court in Monaco on 23 May 2000 and a sentence of a term of imprisonment which Mr Leiduck did not actually serve; what an independent French parliamentary report by a taskforce of the National Assembly of France said about the handling of Mr Leiduck’s case by Monaco; the various efforts made by Mr Leiduck after May 2000 to clear his name; Mr Leiduck’s rebuttal of the plaintiff’s allegations that he had defrauded various third parties; the alleged inducement and intimidation by the plaintiff of Mr Philip Yip (“Yip”), the then general manager of IRC, to agree on behalf of IRC not to claim damages by a promise of business dealings with Yip and a threat to sue Yip personally (which allegations, though made on affidavit, do not form part of the defendants’ pleaded case); and the investigation and evidence of two investigators that the defendants no longer rely on as indicated by Mr Horace Wong SC (leading Mr Clark Wang) on Day 4 (7 February 2013). 25.Further, in view of the statutory test of incompetence (see para 4 above), we may also put aside matters that were clearly spoken to by Mr Leiduck not from his personal perception and recollection, eg where he was merely repeating the contents of a document[9] and where he was expressly reiterating what he had been given to understand by others.[10] 26.In short, I shall concentrate on matters that Mr Leiduck necessarily deposed to first hand from his personal perception and recollection. 27.In this regard, first, in support of the defendants’ case for the setting aside of the settlement agreement, Mr Leiduck’s 1st affidavit (para 8, 15, 16 and 17) and 2nd affidavit (para 2, 4, 5 and 6) dealt with the alleged bribery of Lefort by the plaintiff by setting out Mr Leiduck’s telephone conversation with Fink on 16 March 2006; a subsequent telephone call made by Mr Leiduck to one Dieter Schultz (a director of the plaintiff in charge of finance) who told Mr Leiduck that the car would not be supplied from Stuttgart but made available through a local dealer (which conversation Mr Leiduck relied on as corroborating what Fink had told him); and a letter dated 27 March 2006 written by Mr Leiduck to Mr Karl Ulmer, his lawyer in Germany, advising him of his telephone conversation with Fink on 16 March 2006. 28.Second, in support of the defendants’ claim for damages for loss of commissions under the housing project, Mr Leiduck deposed to his “good relations with the Russians”; the signing of, inter alia, a memorandum of understanding dated 23 December 1991 between the Russian Ministry of Defence, Russia’s State Military Industrial Association Konversija, the Urban Development GMBH and IRSAM (represented by Mr Leiduck); IRC’s initial intended technical supporting role in the housing project; the replacement of IRSAM by IRC after the suspension of the operation of IRSAM by the Monegasque authorities in October 1993 and the withdrawal of the Russians from the housing project as a result of the injunction. See para 3 and 6 of Mr Leiduck’s 3rd affidavit; para 34 of Mr Leiduck’s (2nd) 5th affidavit; para 5‑7 of Mr Leiduck’s 6th affidavit; para 15‑21 of Mr Leiduck’s witness statement and para 5 of Mr Leiduck’s supplemental witness statement. 29.Third, in support of IRC’s claim for loss of the value of its business or his own alternative claim for loss of opportunity to sell his IRC shares, Mr Leiduck deposed to how he founded IRC in 1972 and developed and expanded its business over the years until about 1993 when he became desirous of devoting his time and energy to building his business in Eastern Europe and started to explore the possibility of either selling 70% of his IRC shares to Yip or disposing of all his IRC shares to two Russian gentlemen surnamed Temerko and Mukhin. According to Mr Leiduck, with Yip, he had only got to the stage of eliciting an expression of interest from Yip but they had not agreed on or even negotiated any details. With the two Russians, Mr Leiduck had indicated to them that he was looking for something in the region of US$30 million. Further, Mr Leiduck had also been told by his son, Mr Helge Leiduck (“Mr Leiduck Jr”), between 28 July and 27 September 2011 that Mr Leiduck Jr had been in negotiation with a Russian company called Stern‑Stroy Limited for a sale of 70% of Mr Leiduck’s IRC shares for US$20 million plus a promise of additional investment of up to US$40 million in IRC. Mr Leiduck also asserted the belief that if it had not been for the injunction, he would have sold his IRC shares (which were worth US$30‑40 million), or a substantial portion thereof, to one of these 3 potential buyers. See para 2‑26, 33 and 35‑39 of Mr Leiduck’s (2nd) 5th affidavit; para 10‑14 of Mr Leiduck’s 1st witness statement and the first answer of Mr Leiduck’s answer to interrogatories. Circumstances under which Competency Issue Arose 30.The court received Mr Leiduck’s written evidence and further heard his oral testimony while being unaware that:
31.As it turned out, Mr Leiduck did not complete his evidence in re‑examination. On 22 August 2013, before Mr Leiduck resumed his testimony under re‑examination, Mr Wong SC handed up to the court the English translation of a medical report dated 12 June 2013 (“Stein Report”) by a Dr Albrecht Stein which:
32.In addition to the Stein Report, Mr Wong SC also mentioned that Mr Leiduck had been examined by some other doctor though counsel was then not in a position to provide any meaningful detail. 33.The trial was adjourned to 28 August 2013 for the defendants to make full and proper disclosure of all the information that they had at hand regarding Mr Leiduck’s mental health and capacity and for both parties to consider the implications of such information on the status of the evidence already given by Mr Leiduck and prepare submissions on what the court could and should do in the circumstances. 34.By the 1st affidavit of Mr Jeremy Levy of Robertsons (“Robertsons”), solicitors for the defendants, made on 23 August 2013, the defendants exhibited two other medical reports on Mr Leiduck compiled on 11 June 2013 and 13 August 2013 (“Pfeffer Reports”) by a Dr Klaus‑Dieter Pfeffer, a specialist in psychiatry and psychotherapy, following examinations of Mr Leiduck on 7 June and 9 August 2013 and which concluded that Mr Leiduck was “legally incompetent, incapable of being questioned and unfit to face proceedings in view of his cognitive and emotional disturbances as well as his physical impairment”. 35.By the resumed hearing on 28 August 2013, it was recognised by all concerned that the contents and conclusions of the Stein Report and the Pfeffer Reports put into question Mr Leiduck’s fitness both as a party and as a witness. Competency Issue Directions 36.On 5 November 2013, I appointed Mr Leiduck Jr as next friend for Mr Leiduck for the purpose of carrying on these proceedings on Mr Leiduck’s behalf, thereby dealing with Mr Leiduck’s fitness as a party. After Mr Leiduck’s death, by an Order dated 9 April 2014, Mr Leiduck Jr was appointed to represent Mr Leiduck’s estate in this action and to carry on this action on behalf of Mr Leiduck’s estate. 37.On 5 November 2013 and subsequently on 8 November and 3 December 2013, with a large measure of agreement between the parties, I also gave and revised directions (“competency issue directions”) for assessing Mr Leiduck’s competence as a witness. 38.More particularly, pursuant to the competency issue directions and by a joint letter of instructions dated 27 December 2013 from the parties’ solicitors (settled by the court failing full agreement between the parties), Dr Förstl[11] was appointed as joint expert to assess Mr Leiduck’s mental condition at the various times material to the competency issue. 39.By his report dated 24 March 2014 (“1st Förstl Report”) and oral evidence in court on Days 38‑40 (14‑16 April 2014), Dr Förstl expressed the views:
40.At the conclusion of Dr Förstl’s evidence in court on 16 April 2014, Mr Yan SC applied for leave to adduce additional expert medical evidence from Professor Felice Lieh Mak (“Prof Lieh Mak”)[12] on the competency issue, more particularly, Mr Leiduck’s competence or otherwise prior to February 2013. In this regard, Mr Yan SC had, on 14 April 2014 before the commencement of Dr Förstl’s oral evidence, handed up a report dated 14 April 2014 by Prof Lieh Mak (“1st Lieh Mak Report”) which expressed the contrary opinion that Mr Leiduck had become incompetent from as early as 2008 and remained so throughout the material times up to January 2013. 41.I heard the application on 17 April 2014. For the reasons set out in the decision handed down herein on 22 April 2014, by an order dated 25 April 2014, I gave the plaintiff leave to adduce expert evidence from Prof Lieh Mak on whether Mr Leiduck was incompetent on the various dates from 7 January 2008 to 28 January 2013 when he signed affidavits, witness statements, statements of truth verifying the defendants’ pleadings and answers to interrogatories. 42.By an order dated 12 December 2014 made by consent, I gave the defendants similar leave to adduce expert evidence from Prof Helen Chiu Fung Kum (“Prof Chiu”)[13] on the same issues in response to Prof Lieh Mak’s reports. Test of Incompetence 43.I have already set out the text of s 3(b) of the EO in para 4 above. There is no direct local authority on the meaning of section 3(b).[14] English cases do not assist given the different tests for competence.[15] 44.In response to Dr Förstl’s request for clarification of the meaning of incompetence under section 3(b), by Robertsons’ email dated 25 February 2014 to Dr Förstl, it was explained to Dr Förstl, inter alia, that a person falls within section 3(b) if and only if:
45.That is to say, a person is not incompetent simply by reasons of his having any particular mental illness or condition, unless he thereby appears incapable of receiving just impressions of the facts respecting which he is examined or of relating such facts truly. 46.Dr Förstl understood (correctly in my view) section 3(b) to be triggered if criteria (1), (2a) and (2b) are met in the following ways: (1) and (2a) are true; or (1) and (2b) are true; or (1) and (2a) and (2b) are true. 47.With this understanding, in respect of each the 3 criteria, Dr Förstl looked for and considered:
48.In fact, Robertsons’ email dated 25 February 2014 to Dr Förstl was settled by me, failing agreement between the parties. In doing so, I was provided with, and I duly considered, the parties’ solicitors’ respective draft replies to Dr Förstl which in effect contained the parties’ submissions on the proper construction of section 3(b). In other words, Robertsons’ email dated 25 February 2014 to Dr Förstl, as settled by me, in effect contained my ruling on the meaning of section 3(b). Given the fundamental importance of providing the expert with accurate guidance on the statutory test of incompetence, if I were wrong, I would expect both or either of the parties to demand an oral hearing at which further and/or more detailed arguments could be made by the parties, following which I would rule on the issue. If I were still considered wrong, I would expect either or both of the parties to try to set me right by an appeal to the Court of Appeal. As it were, neither party expressed disagreement with the reply to Dr Förstl that I settled. 49.I therefore did not anticipate:
50.For the plaintiff, Mr Yan SC read section 3(b) of the EO with the following emphases:
51.Mr Yan SC argued that:
52.The plaintiff advanced this submission (which was not included in B&M’s draft reply to Dr Förstl on the statutory meaning of incompetence) to take advantage of some of the answers given by Dr Förstl during the following line of cross‑examination by Mr Yan SC on 15 April 2014:
53.According to Mr Yan SC, as Dr Förstl accepted that Mr Leiduck could not be subjected to the stress and challenges of a normal cross‑examination (whatever that may mean!) before the court in 2011 and 2012 and was equivocal as to whether Mr Leiduck could do so in 2008, 2009 and 2010, Mr Leiduck was not competent to provide written evidence either during those years. 54.Mr Yan SC is essentially asking the court, before holding Mr Leiduck competent on the occasions between January 2008 and January 2013 when he provided written evidence, to require Mr Lieduck to be capable of withstanding a fictional cross‑examination in court, in addition to being free from any unsoundness of mind that made him appear incapable of receiving just impressions or giving true accounts of fact. 55.Neither of the authorities cited by Mr Yan SC, properly read, supports this proposition.
56.Free of authority, I have great difficulty with the plaintiff’s argument. 57.The EO itself contemplates that evidence may be given orally or in writing. See, for example, sections 9, 44 and 76(3). Section 3 itself stipulates when a person is or becomes incompetent “to give evidence in any proceedings”, without distinguishing between oral and written evidence. 58.Indeed, there are many proceedings in which evidence is received entirely in the written form without any oral examination in court. There can be no question that the written evidence to be used in these proceedings must not come from someone who is incompetent as a witness as defined in section 3(b). There is plainly no place for an assumption of a fictional cross‑examination in court in proceedings that do not entail such a stage. 59.Section 3(b) provides in terms for a single test of incompetence (unsoundness of mind causing an appearance of inability to justly perceive or truly relate facts), without regard to the manner in which evidence is taken. If the legislature had intended to treat oral and written evidence differently and to also require a witness who gives evidence in writing to be capable of standing up to an oral cross‑examination in court at the time when he signs his affidavit/witness statement, I would have expected such different treatment between oral and written evidence and additional requirement for competence of written evidence to be expressly spelt out in section 3(b), rather than being left to be inferred in the really convoluted manner suggested by the plaintiff. 60.To my mind, there is no reason why the words “at the time of their examination” in section 3(b), on which Mr Yan SC placed particular reliance, need to be read as referring to cross‑examination in court only. The examination of a witness at a trial takes place in three stages: examination‑in‑chief, cross‑examination and re‑examination. This phrase is apt to be applied to all these three stages. As I see it, it simply fixes the time at which a witness must not be incompetent. 61.Nowadays, the examination‑in‑chief of a witness in court routinely takes the form of confirmation by the witness of the contents and truth of the affidavits/witness statements made by him before trial. Given that the stage of examination‑in‑chief is completed in two phases, for an affidavit/witness statement to be admissible as direct evidence, the witness must not be incompetent at the time when he is asked to affirm the content and the truth of the document in court. In the event that the witness has by the time of the trial become incompetent as defined in section 3(b), his pre‑trial affidavits/witness statements may, in appropriate circumstances, be admissible as hearsay evidence provided that he was not competent at the time when he signed them. It is only when the witness is shown to be incompetent within the meaning of section 3(b) both when he signed the affidavits/witness statements and when he is asked to verify them in court that such written evidence is inadmissible on the ground of incompetence. 62.I reject the plaintiff’s submissions that Mr Leiduck’s competence to give written evidence is dependent upon his being able to handle a hypothetical cross‑examination in court at the time when he provided such written evidence and that Mr Leiduck’s written evidence was produced while being incompetent because Dr Förstl either found Mr Leiduck unable to, or was equivocal as to whether Mr Leiduck could, cope with such examination from 2008 to 2012. 63.It follows that Mr Wong SC’s complaint that Mr Yan SC had, in breach of the rule in Browne v Dunn (1894) 6 R 67, failed to put to the three experts the necessity of imagining a hypothetical cross‑examination of Mr Leiduck in court in assessing his competency to produce written evidence has become academic. 64.For the defendants, Mr Wong SC invited me to infer that the EO intends that the threshold level of competence required to escape the application of section 3(b) should be that commensurate with the intelligence expected of an ordinary seven year old child. 65.In making this argument, counsel referred to and relied on the repealed section 3(a) of the EO which rendered children under seven years of age incompetent to give evidence unless they appear capable of receiving just impressions of the facts respecting which they are examined and of relating them truly, thereby creating a rebuttable presumption of incompetence of a child under 7. Section 3(a) was deleted with effect from 28 July 1995 to “improve the quality of the trial by focusing on the weight to be given to the child’s account and easing the decision‑making process”: R v Lam Chi Keung, supra,at 426E. 66.Mr Wong SC reasoned that the effectively identical wordings of the tests of competence/incompetence in sections 3(a) and (b) suggest that the threshold for person of unsound mind should also be at the same level, i.e. the level of a seven year old child of ordinary intelligence. And the abolition of section 3(a) did not raise this threshold as far as persons of unsound mind are concerned “as section 3(b) has remained unchanged (if not lower by reason of the apparent shift to focus on the weight rather than admissibility)”. 67.I had rejected the defendants’ invitation to read into section 3(b) a threshold level of intelligence by refusing to adopt the part of Robertsons’ draft reply to Dr Förstl that made the same point. 68.Mr Wong SC did not produce any authority supporting the correlation between sections 3(a) and (b) suggested by him, which I find to be non‑existent. 69.First, had the legislature intended “intelligence” of any level to be a material factor in determining the competence/incompetence of a person of unsound mind, one would have expected some hint of this in section 3(b) which, however, makes no such reference at all. 70.Second, it is clear from section 3(b) (and likewise the repealed section 3(a)) that the ability/inability of a witness of unsound mind to justly perceive or truly relate facts is not to be assessed in abstract but with reference to the matters respecting which he is examined. Section 3(a) was concerned with child witnesses and matters respecting which such witnesses are examined. The old rebuttable presumption that a seven year old child is competent to give evidence must thus be viewed in the context of the matters respecting which a child witness may be examined. 71.In this connection, one just has to look at the relevant written evidence given by Mr Leiduck as summarised in paras 27‑29 above. I simply cannot see an average seven year old child even of ordinary intelligence receiving an impression, or giving an account, of matters of the nature and complexity dealt with by Mr Leiduck. 72.I have no hesitation in rejecting the defendants’ invitation to read into section 3(b) a threshold level of “intelligence” once again. Burden and Standard of Proof 73.Section 3(b) itself is silent on the incidence of the burden of proving whether a witness is or is not a person of unsound mind who appeared incapable of justly receiving or truly relating facts. In this connection, I am unable to accept Mr Wong SC’s suggestion that the section implicitly places on the party alleging incompetence the burden of proving the same because it chooses to provide for what constitutes incompetence and not what constitutes competence. Given that the purpose of section 3(b) is to prevent incompetent persons from giving evidence, it is natural for incompetence (rather than competence) to be defined. How else should the section be worded? 74.Mr Wong SC for the defendants sought to attribute to the plaintiff the burden of proving the conditions of incompetence under section 3(b), principally on the basis that there exists a presumption that everyone is competent to give evidence unless shown to the contrary. 75.In my view, whether there is a presumption of competence is neither here nor there. What Mr Wong SC has failed to demonstrate, either on authority or in principle, is that such a presumption operates to shift to the party disputing competence the burden of proving incompetence within the meaning of section 3(b). 76.In this regard, Mr Wong SC referred to the following judicial statements:
77.None of these cases were concerned with a witness of unsound mind in a civil case. They all involved child witnesses of sound mind for the prosecution in criminal proceedings and were concerned with determining whether a prosecution witness was of tender years and therefore unable to give sworn testimony. The incidence of the burden of proving competence/incompetence of such a witness did not arise at all. 78.At common law, in criminal cases, it is well established that once the issue of competence of a witness is raised, the burden is on the party calling the witness or seeking to have the witness sworn to satisfy the court that the witness is competent to give evidence in the proceedings: see R v Yacoob (1981) 72 Cr App R 313 (which was decided before the 1999 Act). The criminal standard of proof (beyond reasonable doubt) applied in deciding issues of admissibility of the evidence of prosecution witnesses (R v Ewing [1983] QB 1039) while the civil standard (balance of probabilities) applied to the evidence of the defence (R v Mattey [1995] 2 Cr App R 409).[16] The rationale appears to me to be that the burden of proving the competence of a witness (when the same is in issue) and therefore the admissibility of his evidence should follow the burden of proving the facts sought to be established by that witness’ evidence. 79.By parity of reasoning, I cannot think of any objection in principle why the same rule should not apply in civil cases: see Phipson on Evidence, supra, paras 9–12. This is the only approach that is consistent with the general rule that the party who asserts must prove. Where a party seeks to rely on a particular piece of evidence, and there is a dispute as to its admissibility, he should have the burden of proving that it is admissible (Phipson on Evidence, supra, para 6–04). The competence of a witness goes to the admissibility of his testimony. Where the competence of the witness is put in issue, proving that the witness is not incompetent so that his evidence is admissible is really discharging the burden of proving the facts to which such evidence relates. It follows that in civil cases the burden should also fall on the party calling a witness and relying on his evidence to prove that he is not incompetent under section 3(b) of the EO if this is disputed. 80.In conclusion, the defendants have the burden of proving that Mr Leiduck was not at the material times incompetent as defined in section 3(b) by showing, on a balance of probabilities, that Mr Leiduck
Such burden is only consistent with the defendants’ burden of establishing the matters sought to be proved by Mr Leiduck, the admissibility of which is conditional upon and Mr Leiduck’s competence. 81.I now turn to the competency issue. Materials before the Court 82.In addition to the written evidence and transcripts of oral testimony listed in para 3 above, there are before the court 6 leverarch files of original and translated contemporaneous records kept by the independent medical and nursing professionals who cared for Mr Leiduck from November 2001 right up to his death on 23 March 2014. 83.These primary materials were reviewed by the three expert witnesses who between them produced a total of seven reports of about 300 pages citing reference materials which take up another three full leverarch files:
84.The 1st Förstl Report also set out the information provided to Dr Förstl by Dr Christine Funk (the general practitioner who looked after Mr Leiduck since his move to the second nursing home in Starnberg‑Percha in April 2013), Dr Pfeffer (a specialist for psychiatry and psychosomatics and the author of the Pfeffer Reports), Mr Leiduck Jr and his wife (Ms Herlinde Leiduck), Dr Linda Koiran (Mr Leiduck’s daughter), Dr med Lother Schumann (Mr Leiduck’s wife’s cousin and Mr Leiduck’s long‑term friend and himself an orthopaedic surgeon) and Mrs Schuman. 85.It also contained Dr Förstl’s report on his personal examination of Mr Leiduck on 30 January and 9 February 2014. 86.The three expert witnesses were examined in court for a total of 20 days.[17] Dr Förstl and Prof Chiu on one hand and Prof Lieh Mak on the other held contradicting views, and were cross‑examined in the most comprehensive fashion by Mr Yan SC and Mr Wong SC, on numerous points, some of which have, with the benefit of hindsight and in the light of the parties’ final positions in closing submissions, become of peripheral importance (save that a conclusion one way or another may perhaps function in generating an impression of the general reliability of the witnesses) or even altogether immaterial, to the real questions that I have to decide. 87.In addition to the aforesaid primary factual evidence on Mr Leiduck’s mental condition and the opinion evidence given by the three experts on the basis of such primary factual evidence, I also have the benefit of the parties’ closing submissions, made both in writing which add up to close to 500 pages (not counting appendices and authorities) and orally in court which took three full hearing days.[18] 88.I am indebted to counsel for their thoroughness in both evidence and submissions, all of which I have duly reviewed and considered with care. I am well aware of all the differences between the parties, put to the witnesses in cross‑examination and addressed in closing submissions. With no disrespect to counsel, I do not propose to attempt to resolve every such difference. It is unnecessary for me to do so. To maintain the focus of this judgment, I hope I would be forgiven for dealing only with those matters that have a material effect on the findings that I have to make. Summary of the Experts’ Opinions 89.I have been reminded by Mr Yan SC, and I bear in mind, that:
90.Nevertheless, the experts’ conclusions provide a useful starting point. Dr Förstl 91.According to Dr Förstl:
Prof Chiu 92.On Mr Leiduck’s competence on the subject dates between 7 January 2008 and 28 January 2013, Prof Chiu generally shared Dr Förstl’s views:
Prof Lieh Mak 93.Prof Lieh Mak on the other hand took the view that Mr Leiduck was suffering from DLB and VaD, and had therefore been incompetent as a witness, since as early as 2008. Findings on the Competency of the Oral Evidence 94.I accept Dr Förstl’s conclusion of incompetence regarding Mr Leiduck’s oral evidence, which is not disputed by either party. 95.As for the 8 May 2013 session, it will be seen that I prefer Dr Förstl’s evidence (supported by Prof Chiu) as to the typical changeability of both DLB and VaD. I see no reason to doubt Dr Förstl’s assessment that Mr Leiduck, though of unsound mind on 8 May 2013, did not appear to be incapable of receiving just impressions of facts or of relating them truly. 96.Consequently, I find all of Mr Leiduck’s evidence in court, except that given on 8 May 2013, inadmissible on the ground of Mr Leiduck’s incompetence under section 3(b) of the EO. Outstanding Issues 97.What remains in issue is Leiduck’s competence or otherwise on 7 January 2008, 9 December 2008, 25 June 2009, 30 March 2010, 6 April 2010, 27 September 2011, 11 January 2012, 19 September 2012, 15 November 2012 and 28 January 2013 (leaving out the dates on which Mr Leiduck signed statements of truth of pleadings for the reasons explained in paras 7 and 8 above). 98.More particularly, I have to decide:
My Overall Impression of the Experts Dr Förstl 99.Dr Förstl’s standing as a leading expert in both neurology and psychiatry with particular qualifications, expertise and experience in all kinds of dementia and age associated mental diseases, and his independence and impartiality as the court‑appointed joint expert, is beyond question and has never been questioned. The department of which Dr Förstl is the director has, inter alia, a day care centre for elderly patients (with dementia, depression and other age associated mental diseases) and three outpatient clinics for organic mental diseases (dementia and mild cognitive impairment). It has an excellent reputation in, among others, the area of dementia and frequently provides expert opinions on questions of mental capacity to families, lawyers and courts. Dr Förstl is certainly familiar with the assessment of mental competence to be a witness, having been involved in the approval of approximately four opinions per year dealing with the question of mental competency to testify in court and the retrospective assessment of when a witness may have become incompetent. 100.I have been greatly assisted by Dr Förstl. The 1st and 2nd Förstl Reports were comprehensive and well grounded in analysis and reasons. Dr Förstl’s evidence under cross‑examination in court (over six days) was visibly forthcoming and fair and inspired confidence. Prof Chiu 101.I have likewise benefited from reading the Chiu Report and following Prof Chiu’s evidence under cross‑examination in court (over five days). 102.Prof Chiu is clearly respected locally and internationally in the fields of psychogeriatric (old age psychiatry) and dementia. 103.More particularly, Prof Chiu holds/held, inter alia, the following esteemed professional positions:
104.Prof Chiu served as Keynote or Plenary Speaker of various Alzheimer’s Disease International conferences. She was recently invited to participate in the WHO First Ministerial Conference on Global Action Against Dementia. 105.Prof Chiu has researched and published widely on dementia and is a pioneer in the research of dementia in Hong Kong, having carried out the first epidemiological study in dementia in Hong Kong in 1995. 106.Not only is Prof Chiu an expert on dementia, she also has special experience in and knowledge of DLB, the sub‑type of dementia with which we are concerned under the Competency Issue:
107.Prof Chiu is, however, not just an academic, but an experienced clinician with ample first hand experience in treating dementia patients (including those with DLB) for about 25 years and has seen at least 1,500 patients. In the past 3 years, she has treated over 200 dementia patients, 8 to 9 of which were suffering from DLB. The latter figure should be viewed against the relatively low prevalence of DLB in Hong Kong (only about 3%). 108.Prof Chiu effectively conveyed her vast experience and expertise in dementia generally and DLB specifically through her report and oral examination. She was demonstrably familiar with the literature and researches on DLB and able to recall them in her head and discuss them in a relevant manner. She managed to comment on, and provide responding authorities, to the new research materials produced by the plaintiff in the middle of her evidence within a day. Mr Yan SC cautioned against the assumption that every patient and his disease progression will follow a “textbook” picture and criticised Prof Chiu for taking an overly academic approach in the assessment of Mr Leiduck. With respect, this is unfair. The proof of facts on a balance of probabilities is not a subjective exercise. In the assessment of mental health and capacity, the findings, opinions and conclusions obtained through specialised studies and researches acknowledged and accepted by the academic and medical communities should be invaluable in guiding the court in deciding where the balance of probabilities should inherently and objectively lie. In any event, Prof Chiu never lost sight of Mr Leiduck as an individual and always took into account his peculiar personal circumstances. 109.Further, despite her lack of prior experience as a court expert, Prof Chiu was not unfamiliar with the assessment of mental capacity, having been actively involved in the research, publication and discussions with other experts on issues relating to assessment of mental capacity over the years. 110.On the whole, I find Prof Chiu a professional and knowledgeable expert witness who, though called by one side, is fair and true to the discipline that she practises. Prof Lieh Mak 111.I do not think it is unjust for me to say that Prof Lieh Mak is more of a generalist. Dementia is admittedly not her specialty. Her curriculum vitae does not reveal any specialised research or publication on dementia. She saw only around 30 elderly patients in the previous three years with just 1 or 2 of them suffering from DLB (who were all at a very late stage of the condition). 112.Of course, I appreciate that the evaluation of expert opinion evidence is not a comparison of the experts’ credentials. However, I have come to the view that I should approach Prof Lieh Mak’s evidence with caution.
113.It is worthy of note that although Mr Yan SC objected to the observations that Mr Wong SC made with regard to Prof Lieh Mak’s quality, independence and integrity as an expert witness (e.g. that she “has shown herself to be an evasive, defensive, and biased expert”; that she was “constantly shifting ground when seeking to justify her opinion” etc), Mr Yan SC did not take issue with Mr Wong SC’s summary of the instances upon which he made those criticisms against Prof Lieh Mak. 114.Indeed, I further observe that Mr Yan SC himself did not adopt many of the arguments made by Prof Lieh Mak in support of “unsound mind” in the years preceding 2011 in the closing submissions for the plaintiff. In light of this, in the judgment that follows, I will not address all the arguments made by Prof Lieh Mak but shall focus on the plaintiff’s case with reference to the submissions advanced on its behalf. 115.For the avoidance of any misunderstanding, despite my said impressions of the expert witnesses, I propose to resolve the material differences between them based on the relative merits of the arguments. DLB Diagnostic criteria 116.The obvious starting point for making a diagnosis of DLB, be it contemporaneous or retrospective, must be the diagnostic criteria. 117.In this regard, I do not see the point of Mr Yan SC’s observation that the diagnostic criteria were formulated for the purpose of the diagnosis of live patients rather than for retrospective assessment. I do not see myself conducting a roving open‑ended inquiry into Mr Leiduck’s mental health. The plaintiff disputes Mr Leiduck’s competence, after access to his medical records, on specific ground, which is that Mr Leiduck had been of unsound mind by reason of DLB ever since 2008, as retrospectively diagnosed by Prof Lieh Mak. How else could I decide whether Prof Lieh Mak is right if not by reference to the diagnostic criteria? Prof Lieh Mak herself claimed to have applied the DSM‑5 diagnostic criteria. Mr Yan SC has produced no authority to the effect that the criteria for the diagnosis of DLB would be any different in a retrospective assessment. Prof Chiu was clear that the diagnostic criteria for DLB are the same for both clinical assessment and retrospective assessment. 118.There are currently two internationally accepted diagnostic criteria of DLB:
119.The Consensus Criteria sets out the criteria for the clinical diagnosis of DLB as follows:
120.The diagnostic criteria in DSM‑5, under “Major or Mild Neurocognitive Disorder with Lewy Bodies”,[21] read as follows:
121.The DSM‑5 diagnostic criteria were apparently based largely on the Consensus Criteria. It can be seen that:
122.Apart from setting out the diagnostic criteria required to be satisfied for a diagnosis of DLB, DSM‑5 also reproduces the Supportive Features mentioned in para 4 of the Consensus Criteria under a different label namely, “Associated Features Supporting Diagnosis” which includes again similar features like repeated falls, syncope, systematized delusions etc. 123.DSM‑5 further provides for the following diagnostic guidelines for Major NCD (equivalent to dementia under ICD‑10) at pp 602–603:
124.Mr Wong SC rightly observed that apart from one minor difference that has no bearing in the present case, these two sets of diagnostic criteria are effectively identical. 125.In applying these diagnostic criteria, the “supportive features”under the Consensus Criteria or the “associated features supporting diagnosis” under DSM‑5are not part of the diagnostic criteria. The mere presence of these features, however frequent or serious, would not warrant a diagnosis of DLB. This should be spelt out because Prof Lieh Mak who applied DSM‑5 had included, in para 10(c)(E) of the 2nd Lieh Mak Report,the “associated features supporting diagnosis”as part of the DSM‑5 diagnostic criteria. Prof Lieh Mak accepted in her oral evidence that the features mentioned there (e.g. delusion) are not a diagnostic criterion of DLB. 126.I have so far not mentioned ICD‑10 which does not contain any specific diagnostic criteria for DLB. But it is not irrelevant as it does provide for the diagnostic criteria for dementia generally (which is the central feature for a diagnosis of DLB under both the Consensus Criteria and DSM‑5) as follows:
127.Insofar as it is material to the issue at hand, I should also refer to the following diagnostic guidelines in the ICD‑10:
128.One of the matters explored in Prof Lieh Mak’s oral evidence was the requirement for a confident clinical diagnosis of dementia to be made that the relevant symptoms and impairments should have been evident for at least six months. Prof Lieh Mak’s suggestion under re‑examination on Day 50 (28 August 2015) that the “6‑month” criterion could be ignored or “presumed”in a retrospective assessment[22] is without basis and unsupported by authorities. Fluctuation of Cognition[23] 129.The significance of the fluctuating nature of DLB is that, as explained by Dr Förstl (with whom Dr Chiu agreed), “individual snapshots” at a given time would not be representative of a longer period; in order to ascertain the competence or incompetence of a DLB patient such as Mr Leiduck, one would need to actually look at his performance on that particular day at that particular time; thus it would be wrong to generalise and each session has to be examined individually. 130.Whilst there is consensus between the experts that DLB patients experience fluctuations and that the periodicity of the fluctuations range from minutes, hours, days or weeks and varies from patient to patient and even for the same patient,[24] Prof Lieh Mak on the one hand and Dr Förstl and Prof Chiu on the other disagreed on the following aspects of the feature of fluctuation. What fluctuates? 131.The first aspect of the controversy is what actually fluctuates in DLB.
132.I prefer the views of Dr Förstl and Prof Chiu to that of Prof Lieh Mak for the following reasons. 133.First, the fluctuation that is described as a core feature in both the Consensus Criteria and DSM‑5 is “fluctuating cognition with pronounced variations in attention and alertness” (emphasis added). 134.Second, the preponderance of research and medical literature produced in these proceedings alludes to fluctuations in cognition and cognitive performance, and not just in attention and alertness, and does not suggest that fluctuating attention and alertness is the sole reason for fluctuating cognition. The following examples, in chronological order, have been identified by Mr Wong SC:
135.The papers produced or referred to by Prof Lieh Mak do not actually support her view in any of its successive forms.
Can a patient fluctuate back to normal or near normal cognitive functioning? 136.There is little dispute that the amplitude of fluctuations in DLB is “marked” or “substantial”. 137.Both Dr Förstl and Prof Chiu opine that a DLB patient can, in the course of these fluctuations, return to normal or near normal level performance during the good moments of their fluctuations, especially in the early stages of the dementia. 138.Prof Chiu explained normal or near normal performance to mean:
139.Of course, as confirmed by Prof Chiu, normalcy means what is “normal for that person”, and that “one person’s normal cognitive ability would be different from the normal cognitive ability of another person”. 140.Dr Förstl and Prof Chiu’s understanding is consistent with the preponderance of authorities. Mr Wong SC highlighted these:
141.The following authorities according to which a DLB patient could achieve scores in the MMSE test within the normal range commonly ascribed to a non‑demented person also indicate a capability to return to normal cognitive ability:[26]
142.The marked fluctuations that DLB patients experience are such that Dr Förstl would explain to a patient who has just been diagnosed with DLB in the following terms:
143.Dr Förstl also said in para 5.2.f of his 2nd report:
144.What I understand Dr Förstl to be saying here is that a DLB patient can bounce back to such a level of cognitive functioning that he can effectively be said to be not demented. 145.In contrast, according to Prof Lieh Mak, there can never be fluctuation back to normal once a patient is diagnosed with DLB. She initially put forward two bases to explain this:
146.The first basis was offered without authority and was abandoned by Prof Lieh Mak after much cross‑examination on day 46 (29 May 2015). 147.With regard to the second basis, on day 44 (27 May 2015), again after much cross‑examination, Prof Lieh Mak accepted that the course is one which is “fluctuating downwards” (and gave a corresponding hand demonstration). 148.Nevertheless, in so conceding, Prof Lieh Mak maintained that fluctuation could never be back to the “baseline”, i.e. “the level of cognitive performance achieved by the patient before he became demented”. That is to say, the patient would not, even during a good “swing”, be able to achieve the level of cognitive performance attained by him before he became demented. 149.To explain this, Prof Lieh Mak suggested for the first time in cross‑examination that DLB is essentially “dementia superimposed by delirium”; that DLB “fluctuation is a delirium, but not a fluctuation of the underlying dementia” and that delirium would not give the patient normal performance. Under cross‑examination, Prof Lieh Mak backed down and revised the description of DLB to “symptoms of delirium imposed upon dementia”. 150.I have great difficulty in following Prof Lieh Mak’s analysis. Her contention that there could be no fluctuation back to normalcy or near normalcy is against the weight of the authorities set out in para 140 above. The equation of the fluctuations experienced by DLB patients to delirium or delirious symptoms goes against common sense. Fluctuations would by definition be between good and bad and between up and down. Prof Lieh Mak’s theory leaves the “good” and the “up” unexplained. 151.To sum up, I am unable to accept Prof Lieh Mak’s evidence. I find that DLB progresses in a fluctuating downhill course and that the fluctuations are of marked amplitude with the patient being capable of putting up normal or near normal performance in the good/up “swings”. While the period of normalcy would get less and less as the DLB progresses, I accept Prof Chiu’s evidence that normal or near normal performance is still possible during the moderate stage though there will be a point when the DLB has progressed to such severity that even a good swing would not be able to push performance of the patient back to normalcy. Other differences 152.There was also a debate as to which part of the brain deteriorates and which function is lost first. To put this in context, Prof Lieh Mak initially suggested that DLB develops “Top‑Down” in that the higher functions would be affected first before basic functions are impaired. From this she argued that if a DLB patient has suffered impairment to his basic functions already, then his higher cortical functions must necessarily have already been severely impaired. On this basis, Prof Lieh Mak relied on the level of basic personal care that Mr Leiduck required as evidence of the severity of his cognitive impairment. 153.Although much time has been spent in both evidence and submissions on this, it is unnecessary for me to resolve this issue for the simple reason that I am not persuaded that, having regard to the whole picture before me, it is more probable than not that Mr Leiduck’s dependence on others for basic personal care and the various other matters in 2008, 2009 and 2010 relied upon the plaintiff were symptoms of a dementia, whether DLB or VaD. 154.Another topic canvassed in cross‑examination and submissions is BPSD which refers to a cluster of symptoms including delusions, hallucinations, agitation/aggression, depression/dysphoria, anxiety, elation/euphoria, apathy/indifference, disinhibition, irritability/ lability, aberrant motor behaviour, sleep and appetite and eating disorders.[28] The main aspects explored are the cause of BPSD (whether they are multi‑factorial) and whether BPSD have a direct correlation with the severity of the dementia or cognitive impairment so that the behaviourial symptoms of Mr Leiduck that one can observe from the records kept on him by his first nursing home in Essen during the period from February 2012 to April 2013 can be used to gauge his cognitive performance and hence competence. 155.Again, on proper analysis of all the evidence available, I need not deal with this issue, interesting those it is. This is so because even if the defendants are right that BPSD are multi‑factorial in cause and that they do not have a direct correlation with the severity of the dementia or cognitive impairment, it is my view that the defendants have failed to discharge the burden of proof on them that it is more probable than not that Mr Leiduck had bounced back to a level of cognitive functioning that made him competent as a witness when he signed his (2nd) 5th affidavit, 6th affidavit, witness statement, supplemental witness statement and answers to interrogatories on 27 September 2011, 11 January 2012, 19 September 2012, 15 November 2012 and 28 January 2013 respectively. 156.All three experts were asked about how they would stage Mr Leiduck’s dementia at different times.[29] Given that we are concerned with Mr Leiduck’s competence on specific dates and that cognitive fluctuations occur at all stages of DLB and VaD, I do not derive any real assistance from a general statement that Mr Leiduck’s DLB and VaD had approximately reached what stage at what time. 157.On these notes, I turn to the question whether Mr Leiduck suffered from DLB or VaD in 2008, 2009 and 2010 even before Dr Gallard’s diagnosis. Available Information about Mr Leiduck’s Health 158.Mr Leiduck was born on 9 January 1930. So he was 78 years old at the beginning of the material period of time. 159.Mr Leiduck was throughout the period with which we are concerned suffering from a number of physical illnesses and ailments, some of a chronic nature with increasing severity (especially heart diseases). 160.The earliest record available to us that documented Mr Leiduck’s heart conditions is a medical report dated 23 November 2001 relating to his hospitalisation from 5 to 23 November 2001. This was followed by repeated hospital admissions in subsequent years. The heart conditions deteriorated over the years, necessitating a surgery for recanalization for left‑dominant coronary circulation in November 2001, further surgery for recanalization of the RIVA in January 2003 and eventually the implantation of a pacemaker in February 2008. Indeed, the substantial body of medical records we see in this case were generated by the hospital admissions for treatment of Mr Leiduck’s various physical illnesses and ailments. 161.Mr Leiduck also suffered from a condition called retinitis pigmentosa, which is a progressive disease having these features:
162.The medical report dated 23 November 2001 already noted that Mr Leiduck had significant visual impairment due to bilateral retinitis pigmentosa. A medical report dated 27 March 2008 in relation to his hospitalisation from 5 to 30 March 2008 recorded the fact that Mr Leiduck had 100% disability and required a care level of 1 due to his amaurosis. Upon his admission to hospital again on 24 May 2008, he was documented in the nursing record as having just 1% sight. Mr Leiduck became completely blind sometime in 2011 or 2012. 163.As a result of his heart and other physical conditions, Mr Leiduck had been repeatedly admitted into hospitals in every year since 2001 (i.e. the year from which we have Mr Leiduck’s medical records). Mr Wong SC counted at least 26 admissions, 10 of which were between 2008 and 2010, as set out in Appendix 2 to his written submissions dated 6 May 2016. 164.Of particular relevance to us is that during these hospital admissions, Mr Leiduck also underwent 7 neurological examinations, 2 psychological examinations and 2 psychiatric assessments as follows:
165.There was no record of any diagnosis, findings, complaints or even suggestion of any cognitive impairment prior to July 2011. Dr Förstl (who is of course familiar with the environment where Mr Leiduck was treated) made the following observation on Day 38 (14 April 2014):
166.It was during the 4 to 18 July 2011 admission that Mr Leiduck was referred to Dr Gallard for a neurological examination on 7 July 2011. 167.The report by Dr Gallard following his examination of Mr Leiduck on 7 July 2011 read as follows:
Any unsoundness of mind before Dr Gallard’s diagnosis? 168.Against the aforesaid background, the plaintiff surmised that Mr Leiduck’s dementia had been overlooked by the doctors who treated him before July 2011. In support, the following points were made:
169.With respect, if there is evidence that Mr Leiduck had started to suffer from DLB or VaD in 2008, 2009 and 2010, these reasons may explain why the dementia was not diagnosed until July 2011. However, they do not, without more, establish or even tend to establish Mr Leiduck’s allegedly undetected dementia. So the real question is whether Mr Leiduck did or did not exhibit any symptoms of DLB or VaD in 2008, 2009 and 2010. 2008 170.For the year 2008, I wish to start by taking on board Mr Wong SC’s observations that Prof Lieh Mak’s opinion that Mr Leiduck had started to suffer from DLB and was thereby incompetent in 2008 was initially supported on 6 bases and that only 2 of these grounds have been retained by the plaintiff in final submissions. Like Mr Wong SC, I cannot help but wonder where this leaves the plaintiff given that Prof Lieh Mak expressly did not rely on any of the original 6 bases as being conclusive but as painting the “whole picture”. 171.Be that as it may, the plaintiff still pointed to the following:
172.I shall deal with these in turn. CT scan 173.There is a distinction between pathology and symptoms, and the two do not correlate.[32] All the experts agreed that one cannot make diagnosis of dementia from brain pathology — dementia is a syndrome and not a disease, and can only be diagnosed from clinical symptoms, not CT scan results which are not part of the diagnostic criteria. Most infracts (more than 80%) observed in CT scans are actually silent infracts that have no clinical manifestation at all. 174.As explained by Dr Förstl, whilst a person with such brain changes may have a statistically increased risk of developing dementia in the future, this is just one of the many factors that might contribute to a later manifestation of dementia, but “it would not allow me to make an individual prediction that this person will probably become demented within the next five years.” 175.Prof Lieh Mak admitted that “there’s no correlation between the extent of damage and the functional loss”; that “it's not possible to say that [Mr Leiduck] was demented or the degree of dementia” and that she was just “making the assumption that it is possible to have some degree” of dementia or cognitive impairment (the basis of which Prof Lieh Mak did not make clear). In the end, she accepted that without memory loss, the CT scan would not warrant any diagnosis of dementia. Need for help with basic care 176.First, the nursing care history actually recorded both Mr Leiduck’s need for personal assistance and that he was not suffering from dementia. Mr Leiduck was also noted in the same document as being alert, orientated (to identity, situation, location and time), active, cooperative and even‑tempered and as having clear speech. 177.Second, as explained by Prof Chiu and Dr Förstl, referring to DSM‑5,in order to diagnose dementia, it must first be shown that there is cognitive decline that interferes with independence in everyday activities, i.e. the loss of independence in everyday activities is due to the cognitive deficit, because there can be any number of reasons for a person’s loss of independence in everyday activities that have nothing to do with cognitive deficit. One cannot reverse the logic and use the need for personal assistance to diagnose dementia. 178.In Mr Leiduck’s case, common sense would suggest that he required personal care assistance because of his advanced aged, poor physical health and visual impairment. Behaviour in ward 179.I agree with Mr Wong SC that the entries extracted in para 170(3) above should be read in context:
180.I have no difficulty in accepting Mr Wong’s submission that the entries in the nursing records of the May 2008 Admission at most suggest a minor and transient confusional state suffered by Mr Leiduck at night, and caused by a “whole package” (using Prof Chiu’s expression) of factors including Mr Leiduck’s physical conditions, blindness and the drugs that he was receiving during the time. 181.This is soundly reinforced by:
182.Most importantly, there was no other report of any mental condition — delirium or otherwise - in the whole of 2008 at all. 2009 183.For 2009, the plaintiff referred to the following as demonstrative of dementia:
Wife’s telephone number 184.Prof Lieh Mak speculated that the phone number was not given because Mr Leiduck had forgotten his wife’s phone number due to his dementia. 185.The entry in the nursing records was very brief, apart from recording that the telephone number of the wife was not given, no further details was provided. The fact that Mrs Leiduck’s telephone number was not given could be due to any number of reasons. It was pure speculation on Prof Lieh‑Mak’s part to assume that Mr Leiduck had forgotten about the phone number. 186.Even if the telephone number did slip Mr Leiduck’s mind, it is in any event not that uncommon to find people forgetting phone numbers, including phone numbers of oneself and one's spouse. One such incident is not something from which dementia could be inferred. 187.It should also be perfectly understandable in light of the circumstances under which Mr Leiduck was admitted and the symptoms that he was exhibiting at that time. Mr Leiduck was rushed to the hospital by ambulance, with angina pectoris, shortness of breath, cold sweats, headache, dizziness, palpitations with a new onset of atrial fibrillation, which is a very serious life-threatening condition(Mr Leiduck was put on heparin treatment because the doctors considered him as having a high risk of stroke). Mr Leiduck could well be so unwell physically that he was not able to respond to a request for phone number. Bowel movement 188.This is a non‑point. Prof Lieh Mak conceded after much cross‑examination that Mr Leiduck did not have faecal incontinence and this entry could simply be because Mr Leiduck felt pain, which was common for elderly patient, and the release was an accident. Aggression 189.The plaintiff attempted to classify this as BPSD. However, as pointed out by Prof Chiu, this kind of behaviour could be seen in a lot of normal elderly who are not demented. One cannot put the cart before the horse. One has to diagnose dementia first before one moves on to judge whether certain repeated behaviour — aggression, anger, depression, fear etc — is BPSD. One cannot turn around the logic and diagnose a person to be demented because he was found indignant or aggressive on a particular occasion, when his request for something he wanted was denied. 190.As in 2008, there was no other report of any mental condition or behaviourial issue in the whole of 2009 at all. Nursing care level 191.The assessment of nursing care level was merely an assessment to ascertain the amount of time for personal care assistance in terms of hours and minutes that a person requires. 192.Insofar as Mr Leiduck was concerned, the MediClin Report dated 27 March 2008 recorded that “due to [Mr Leiduck’s] amaurosis he has a Degree of Disability of 100 and a care level of 1”. 193.The report of the 2009 Assessment is not available but the 2012 Medicproof Report noted the following about the 2009 Assessment:
194.Prof Lieh Mak relied on these records to argue that the increase in the level of Mr Leiduck’s need for nursing care could not be explained by his physical conditions but must have been the result of the view taken by the Medicproof experts that Mr Leiduck was suffering from dementia in 2009. 195.This argument, however, ignored what was recorded under the heading “Previous history relevant to nursing care” in the 2012 Medicproof Report:
196.It is clear that, contrary to Prof Lieh Mak's conjecture, the nursing care level was recommended by reason of the various physical illnesses (such as heart failure, blindness, balance disorders, etc.) in 2009. 197.As far as the Midicproof experts were concerned, dementia only became relevant for the assessment of nursing care level since April 2012. If indeed dementia had been diagnosed or its possibility detected and considered relevant in 2009, it would have been mentioned in the medical history, as the Medicproof experts in May 2012 clearly had the repot of the 2009 Assessment in their hands for reference. 198.Even in 2012, according to para 3 of the 2012 Medicproof Report, the diagnoses relevant to Mr Leiduck’s need for nursing care were:
199.That is to say, even in 2012 (after DLB had already been diagnosed and fully taken into account), the Medicproof experts did not consider Mr Leiduck’s DLB to be a “diagnosis justifying nursing care” in assessing the nursing care required by him. It is hence most unlikely that 3 years earlier when the Medicproof experts made the 2009 Assessment, they were making it on the basis that Mr Leiduck was suffering from dementia — but somehow made no reference whatsoever to it (or else the “previous history” in the 2012 Report would have referred to it). 2010 200.For 2000, the plaintiff relied on the following notations in the record relating to Mr Leiduck’s hospitalisation from 5 to 8 July 2010:“need for assistance with personal care”; “need for constant supervision” and “delirium, not further identified”. 201.I believe these have already been dealt with in the above paras 175 to 177 (need for help with personal care) and paras 178(3) and 179 (delirium) where I dealt with similar issues regarding the May 2008 hospitalisation. 202.As in 2008 and 2009, there was no other report of any mental condition or behaviourial issue in the whole of 2010 at all. 203.To take stock, there were only three documented confusional states or suspected confusional states, all of which occurred during hospitalisation and from which Mr Leiduck apparently recovered fully, in the entire 3 years from 2008 to 2010. They came nowhere near fulfilling the relevant diagnostic criteria, to which one should always go back. 204.Indeed, it appears to me that the plaintiff (relying on Prof Lieh Mak’s assessment) was making a mountain out of a molehill. 205.The plaintiff’s case relating to 2008‑2010 is fully met by the following answers given by Dr Förstl to Mr Wong SC’s questions on day 60 (24 February 2016):
206.In light of the evidence, the only conclusion that I can draw regarding 2008, 2009 and 2010 is that Mr Leiduck had not started to suffer from either DLB or VaD, and was therefore not of unsound mind, in those years. 207.What I can however accept is that the behaviour that led to the consultation with and examination by Dr Gallard probably occurred more than once for a while before that visit. That much is clear from the “History” section of Dr Gallard’s report (para 166 above). However, I consider it unnecessary to dwell on this, seeing that Mr Leiduck did not produce any written evidence after 6 April 2010 and before 27 September 2011. 208.For the avoidance of doubt, in coming to the aforesaid conclusion in respect of 2008‑2010, I did not apply any “presumption of competence”. In my view, such a “presumption” merely describes the implicit basis upon which the court receives evidence from a witness whose competence is not in issue. It has no place when competence is contested. When there is a challenge, competence has to be proved on the evidence without reference to any presumption. In such a situation, where there is no evidence of incompetence and the court rules in favour of competence (as in this case), the court is taking a view on the evidence and is not applying any “presumption of competence”. Capable of receiving just impressions of fact and or of relating them truly on 27.9.2011, 11.1.2012, 19.9.2012, 11.5.2012 and 28.1.2013? 209.Mr Leiduck moved into a nursing home in Essen on 2 February 2012 and stayed there until 18 April 2013. Included in the papers were 161 pages of care records kept by this nursing home which detailed Mr Leiduck’s condition and behaviour and changes therein, good or bad, on a daily basis. 210.In making the defendants’ case that the DLB (or VaD) did not produce the relevant incapabilities under section 3(b) after July 2011, Mr Wong SC referred to and relied on what these care records said about Mr Leiduck on the dates with which we are concerned as well as those immediately before and after them:
211.I have considered these care records very carefully. While they do show that Mr Leiduck was not in one of his bad days on 19 September 2012, 15 November 2012 and 28 January 2013 (with some qualification for the last‑mentioned date since he did exhibit some BPSD in the small hours and in the evening), they do not on proper reading actually show that those were necessarily good days. The only notation for 19 September 2011 was that there were conversations between Mr Leiduck and his carer to maintain contact. There was no entry in respect of 15 November 2012 at all. 212.And for 27 September 2011 (i.e. the date of the (2nd) 5th affidavit) and 11 January 2012 (i.e. the date of the 6th affidavit) which were before Mr Leiduck’s move to the nursing home, the only matter that Mr Wong SC could draw my attention to was that Mr Leiduck was not in hospital on those dates. 213.In any event, it is not sufficient for the defendants who bear the burden of proving that Mr Leiduck was not incompetent within the meaning of section 3(b) to just show that Mr Leiduck was not in a bad “swing” on the subject dates. Accepting that a DLB patient can fluctuate back to normal or near normal cognitive performance, what is required is some evidence that Mr Leiduck did in fact fluctuate back to such a level of performance that he did not appear incapable as defined in section 3(b). 214.Submissions such as that Mr Leiduck was probably still in an early (or even prodromal) stage of the dementia and that long good moments tend to be more abundant at such a stage do not help in fixing Mr Leiduck’s actual mental condition on the particular dates on which he produced written evidence. 215.The same goes for the positive observations on Mr Leiduck’s general mental state before the death of his wife provided by the informants interviewed by Dr Förstl, given the fluctuations in cognition and the unpredictability of such fluctuations in terms of periodicity and amplitude. These informants obviously did not see Mr Leiduck on a daily basis or on any of the subject dates. 216.Nor can I derive assistance from the contents of the written evidence itself (which Mr Wong SC described as “logical, consistent, coherent and filled with relevant details”). I have not been told how they were prepared, in particular, whether Mr Leiduck drafted them himself or whether he just gave instructions to his lawyers who then turned his instructions into the affidavits and witness statements in question and, if so, the quality of such instructions. 217.Lastly, Mr Wong SC reminded me of the fact that Mr Leiduck signed some of the documents in Germany before a notary public who certified that the contents of the documents had been read to Mr Leiduck who understood and approved them. Of relevance for present purposes are the notary certificates by one Dr Martin Alberts:
218.These certificates did not actually describe Mr Leiduck’s mental state as observed by the notary public. In any event, it is not clear if the notary public was qualified to assess Mr Leiduck’s competence or if he did so assess Mr Leiduck at all. On this, I believe I am entitled to draw on my own personal experience of observing Mr Leiduck give evidence under cross-examination in sessions of 2 hours or so on 15 days from 25 February to 7 June 2013 and having no inkling whatsoever that he was in fact incompetent except on 8 May 2013. It was not until Mr Leiduck returned in August 2013 that I began to detect that something might be wrong. 219.On the evidence, I am driven to the conclusion that the defendants have not discharged the burden of proving that Mr Leiduck was not incompetent on 27 September 2011, 11 November 2011, 19 September 2012, 15 November 2012 and 28 January 2013. It follows that the written evidence signed by Mr Leiduck on those dates are inadmissible on the ground of incompetence of the witness. 220.In this connection, I do not agree with Mr Wong SC’s construction and understanding of the competency issue directions. According to counsel, under those directions:
221.I have great difficulty with Mr Wong SC’s position. I have reviewed the transcript of the hearing at which the competency issue directions were argued. It was never suggested that the usual adversarial nature of the proceedings before this court should be changed; that this court should abdicate any of its duties to the single joint expert; or that the usual principles governing the incidence of the burden of proof should be disapplied. Paragraphs 6 and 7 of the Order dated 15 November 2013 (under which the single joint expert should provide the parties with a list of all the documents etc. he would require for the preparation of his report and the parties were to comply with such list) were included in the interest of saving the time and costs that might otherwise be wasted by a general discovery exercise without the expert’s input. They were not intended to restrict and did not have effect in restricting either party’s right to adduce evidence not sought by the single joint expert. It was up to either party to decide what further evidence (if any) they should lead upon hearing from Dr Förstl in 2014 that the materials that had been provided to him were sufficient for him to conclude whether Mr Leiduck was competent or incompetent when making his affidavits and witness statements. 222.Lastly, while I disagree with Prof Chiu’s conclusion of competence, I am mindful that Prof Chiu reached such view largely on the understanding that there is a presumption of competence. Prof Chiu is not to be criticised. Whether such a presumption exists or operates is a matter of law. I repeat what I have said in para 207 above. Summary of findings 223.In summary:
224.I am grateful to counsel for both parties for their assistance. 225.I shall hear the parties on the effects of the findings made in this judgment and on costs on 7‑9 December 2016.
Mr John M Y Yan SC and Ms Sara Tong, instructed by Dechert, for the plaintiff Mr Horace Wong SC and Mr Clark Wang, instructed by Robertsons, for the defendants [1] A neurologist, psychiatrist and psychotherapist as well as the geriatrics director of the Department of Psychiatry and Psychotherapy, Technicshe Universität München appointed by the court as the joint expert for the purposes of the competency issue. [2] Mr Leiduck showed a moderately severe form of dementia syndrome with predominant amnesia, disorientation and attention deficits. By reason of his being demented, he was disoriented, unable to concentrate and to learn simple facts and to present the facts properly and realistically during attentional, delayed recall, definition and planning tasks. [3] Mr Leiduck would not recover from the state of incompetence. Even though there might be fluctuations in his performance, it would be highly unlikely (<99%) that he would even for very short periods (in terms of hours) attain levels of cognition observed in previous years. Longer periods (in terms of days) of sufficient cognitive performance can be ruled out with final certainty. [4] Mr Leiduck also swore a 7th affidavit on 25 September 2012 but it was made in support of his application to give evidence from Germany via video link. [5] See the transcript of day 36 (5 November 2013) at p 51(20)‑(21). [6] The other two answers were concerned with the witness statements of two investigators that the defendants no longer rely on. See the last 3 lines of para 24 below. [7] US$20 million less US$5 million which had been recovered by the plaintiff under a bank guarantee provided by IRSAM. [8] For the sake of completeness, IRC also grounds its case for the setting aside of the settlement agreement on the plaintiff having fraudulently or negligently misrepresented to IRC, inter alia, that the plaintiff had at the time of the application for the injunction mistakenly but genuinely believed that US$6 million of the monies advanced by the plaintiff to IRSAM had been used to discharge IRC’s loan and that this mistake was not discovered by the plaintiff until 14 May 1994. It appears to me that Mr Leiduck’s evidence is irrelevant to this part of the defendants’ case on liability as the defendants seek to prove the same with reference to certain documents disclosed by the plaintiff in these proceedings in 2010: see para 17‑19 of the decision that I handed down herein on 13 June 2013. Although Mr Leiduck did touch upon this ground for setting aside the settlement agreement in his 3rd affidavit (para 71‑81), in my view, what he said amounts to submissions as to what inferences regarding the plaintiff’s knowledge that the court should draw from the plaintiff’s documents. Such submissions can be made without Mr Leiduck’s evidence. [9] Examples are where Mr Leiduck set out the turnovers, profits and asset values of IRC as shown in documents such as IRC’s financial statements or where he simply produced such documents. See para 20, 23 and 24 of Mr Leiduck’s 1st affidavit; para 97 and 98 of Mr Leiduck’s 3rd affidavit; and para 27, 29 and 31 of Mr Leiduck’s (2nd) 5th affidavit. [10]An example is where Mr Leiduck talked about how IRC collapsed in consequence of the injunction, including the departure of all its employees, the withdrawal of all facilities by its bankers and the termination of IRC’s agencies by its principals etc, which all happened when Mr Leiduck was being imprisoned in Monaco. See para 21 of Mr Leiduck’s 1st affidavit; para 2 of Mr Leiduck’s 4th affidavit; paragraphs 28, 30 and 31 of Mr Leiduck’s (2nd) 5th affidavit; and para 5‑9 of Mr Leiduck’s 1st witness statement. [11]Who was nominated by the plaintiff and chosen by the court failing agreement between the parties. [12]Former chair professor in Psychiatry of the University of Hong Kong (1984‑2001) and a practising specialist in psychiatry (since 2009). [13]Professor of Psychiatry at the Chinese University of Hong Kong and former Head of Department of Psychiatry at the Chinese University of Hong Kong (1996‑2011) [14]I have been referred to The Queen v Chan Kin, CACC 492/1987, unreported (25 March 1988) in which the complaint was that the trial judge did not conduct a sufficient inquiry into the extents to which the two girls on whose evidence the defendant was convicted of unlawful sexual intercourse with a girl under 16 were mentally handicapped and the Court of Appeal dealt with how a judge who has been made aware that a witness about to give evidence suffers from some form of mental disability should go into the matter. I have also been referred to R v Lam Chi Keung [1997] HKLRD 421 but it was concerned with a child witness of sound mind. [15]In the UK, a different test is adopted to determine competence of an adult witness in civil cases, namely, capabilities of understanding the nature of an oath and of giving rational testimony (see Phipson on Evidence, 18th edition (2013), para 9‑08). In criminal cases, section 53(3) of the Youth Justice and Criminal Evidence Act 1999 (“1999 Act”) provides that a person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to understand questions put to him as a witness and give answers to them which can be understood. [16]This has since been changed by section 54(2) of the 1999 Act which provides that it is for the party calling the witness to satisfy the court that, on a balance of probabilities, the witness is competent to give evidence in the proceedings without distinguishing between prosecution and defence witnesses. [17]Dr Förstl (14, 15 and 16 April 2014); Prof Lieh Mak (26, 27, 28 and 29 May, 10 and 17 June, 25, 28 and 31 August 2015) and Prof Chiu (31 August, 14 September, 17 and 18 December 2015, 18 and 19 February 2016); and Dr Förstl again (22, 23 and 24 February 2016). [18]23 and 24 May and 8 June 2016. [19]Which, Dr Förstl surmised, was not available to Dr Gallard on the same day when he made the diagnosis of DLB. [20]Which, in 1996, first coined and promoted the term “behavioural and psychological symptoms of dementia” (“BPSD”). [21]Despite the references to Mild NCD, only Major NCD corresponds to dementia properly so‑called. See DSM‑5 p 619. [22] “in reply to this comment from both Dr Forstl and Prof Chiu, I did not take it into consideration, the six months, because I was looking at retrospectively, and from 2008 Mr Leiduck did have symptoms. We don't know the onset of that. So I think that's my caveat.” [23]A definition of “cognition” embracing the following six domains can be found in DSM‑5:
[24]In Prof Chiu’s own clinical experience, “it varies. Sometimes it can be quite short lived but sometimes it can be for days” and the longest period that she observed is “two or three weeks — several weeks.” Likewise, Dr Förstl deposed that “fluctuations can be all too varied. Some relatives do describe periods of months of deterioration and then recovery. Others describe very swift changes from day to day. Sometimes even within hours.” Prof Lieh Mak agreed during cross‑examination that fluctuation periods vary and could be in terms of hours, days or weeks. [25]Chapter 35 of Oxford Old Age Psychiatry (2013). [26]As Prof Chiu explained, though MMSE score is not a diagnostic criteria of DLB, it is a generally accepted test for the general cognitive function of a person and people have widely accepted the cut‑off score of 23 (which has a rather high sensitivity and specificity) as being the rough guideline between a demented person and non‑demented person. [27]“SDLT patients” refers to DLB patients. MTS is another global cognitive test similar to but less widely used than the MMSE test. [28] See Del Ser et al, “Dementia with Lewy bodies: Findings from an international multicentre study” (2000), p 1042, Figure 1. [29]McKeith 2012 describes 3 stages of DLB, the first 2 of which were referred to by the parties:
[30] For example, in Hong Kong, only around 3% of dementia patients are patients with DLB. [31] “The assessment of fluctuating cognitive impairment poses considerable difficulty to many clinicians and has been repeatedly cited as a reason for low clinical ascertainment of DLB”. See McKeith 2007 at p533 left. [32] See e.g. Vermeer et al, “Prevalence and Risk Factors of Silent Brain Infarcts in the Population-based Rotterdam Scan Study” (2002); Pendlebury & Rothwell, “Prevalence, incidence, and factors associated with pre-stroke and post‑stroke dementia: a systematic review and meta‑analysis” (2009); and Cramer et al, “Harnessing neuroplasticity for clinical application” (2010). [33] I am unable to accept Prof Lieh Mak’s opinion that Mr Leiduck’s blindness had been so fully compensated that he should have no difficulty in navigating around in a new environment even while he was sick because it was not sudden but of a gradual progression. It defies common sense. [34] Which is transient and can be fully recovered from relatively quickly without any lasting cognitive impairment (after the medical or physical causes causing the delirium have been removed). It is not dementia as the DSM‑5 diagnostic criteria for Major NCD (or dementia) mandatorily requires that delirium should be excluded first before dementia can be diagnosed. |
Cases cited in this judgment
Further hearings and rulings under HCA 4089/1994