Erwiana Sulistyaningsih v. Law Wan Tung

DCPI 569/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 569 OF 2015

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DECISION

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1.In this case, interlocutory judgment on liability was entered in favour of the plaintiff and against the defendant on 28 April 2015. The only remaining issue is assessment of damages.

2.The court has given various directions in relation to the assessment of damages. 

3.On 26 February 2016, Master Rita So gave, inter alia, the following directions to the parties:-

(a) the expert medical evidence be limited to one psychiatric expert for each party, namely Dr Hung Bing Kei Gabriel (“Dr Hung”) for the plaintiff and one to be nominated for the defendant;

(b) the defendant shall inform the plaintiff’s solicitors by way of letter her choice of psychiatric expert within 42 days, and the plaintiff’s solicitors shall report to the PI Master the date of the intended medical examination within the next 14 days; and

(c) in the event that the defendant fails to nominate her psychiatric expert within the prescribed time, it will be deemed that the defendant has elected not to adduce psychiatric expert medical evidence at the assessment of damages, and the plaintiff do have leave to proceed to arrange an examination with the sole psychiatric expert Dr Hung on or before 5 June 2016.

4.The defendant failed to nominate her psychiatric expert within the prescribed time.

5.On 25 April 2016, the plaintiff’s solicitors sent a letter of instructions (“the Instructions Letter”) and provided the documents in enclosure 1 therewith (“Enclosure 1”) to Dr Hung.  Dr Hung examined the plaintiff on 4 May 2016 and prepared a psychiatric expert report on 16 May 2016 (“Dr Hung’s Report”). 

6.In the checklist review hearing before Master J Chow (“the master”) on 10 February 2017 (“the checklist review hearing”), the plaintiff sought a direction that Dr Hung’s Report be adduced as evidence in the hearing for the assessment of damages without calling Dr Hung.  The defendant objected and applied for an order that Dr Hung shall attend the hearing for assessment of damages and be cross-examined by the defendant.  After hearing the parties’ submissions, the master refused to accede to the defendant’s request and granted the direction sought by the plaintiff (“the order”).

7.By a notice of appeal dated 22 February 2017, the defendant lodged an appeal against the order (“the appeal”).  It is clearly stated on the notice of appeal that the appeal will be heard on 24 March 2017.

8.On 16 March 2017, just 8 days before the hearing of the appeal, the defendant’s solicitors wrote to the master asking for written reasons for the order.  On 20 March 2017, the master directed the defendant’s solicitors to apply for transcript of the checklist review hearing (“the transcript”).

9.On 21 March 2017, the defendant’s solicitors wrote to this court, enclosing a consent summons signed by the parties.  By the consent summons, the parties jointly seek an adjournment of the hearing of the appeal to a date to be re-fixed (“the adjournment application”).  The reason given in support of the adjournment application is that the transcript is not yet ready. 

The adjournment application

10.Today, the parties seek leave to withdraw the adjournment application.  I grant the leave sought by the parties.  The parties agreed that costs of the consent summons be in the cause of the appeal.

The appeal

11.For the record, I have heard the audio recording of the checklist review hearing.

12.In the checklist review hearing, Mr Ching for the defendant submitted that although the defendant had not engaged a psychiatric expert, the defendant should still be allowed to cross-examine Dr Hung in the hearing for the assessment of damages.  The defendant might have input from an expert to assist her in conducting the cross-examination.  The defendant had the entitlement to cross-examine Dr Hung, and she should not be deprived of this entitlement.

13.The master asked Mr Ching whether he had prepared a list setting out the issues in Dr Hung’s Report which were being disputed by the defendant (“the list of issues”), and whether the defendant was willing to provide an undertaking as to costs (“the undertaking as to costs”) if she insisted that Dr Hung should come to court to be cross-examined.  Mr Ching could not provide both the list of issues and the undertaking as to costs.  The master further told Mr Ching that if the defendant was prepared to engage a psychiatric expert, the defendant should seek leave to adduce a report made by her psychiatric expert. The master said that the court would not allow the defendant to have an expert behind the scene to propose cross-examination questions.

14.From these exchanges, the reasons for the order are apparent.  The master considered that it would not be appropriate for the defendant to request for cross-examination of Dr Hung in the absence of the list of issues and the undertaking as to costs.  Further, the master considered that it would not be right for the defendant to have an expert behind the scene.

15.This is a de novo hearing, see Hong Kong Civil Procedure 2017, Vol 1, §58/1/2.  I consider the defendant’s request afresh, as if the matter came before the court for the first time.

16.The list of issues requested by the master is important for the purpose of conducting the active case management required by the Rules of District Court, Order 1A, rule 4. The court would only be able to consider whether cross-examination is really necessary after seeing the list of issues.  Further, if cross-examination is necessary, the court would also need to know what issues are in dispute for the purpose of allocating reasonable time for the cross-examination in the assessment of damages.  All these cannot be done in the absence of the list of issues. 

17.For the hearing today, Mr Ching in his written submissions says:-

“6. As clearly stated in the Report of Dr. Hung that information about the Plaintiff had been obtained from the Plaintiff herself at the time of the examination, and he would rely upon the information in order to base his opinions as stated in the Report.

7. Further Dr. Hung was fully aware that the credibility/reliability of the Plaintiff was a live issue (see paragraph 15.3 of the Report), and he said that “the core of reliability is consistency”.

8. The doctor, then went on to say that “I find the Plaintiff to be reliable. There was consistency in the symptoms reported by her during the course of the examination, and the information available in the documents and records provided by the instructing solicitors”.

9. What was said by the Plaintiff during the examination was clearly recorded/reported in details under paragraphs 10-14 of the Report. What was provided by the Instructing Solicitors were also recorded in the Letter of Instructions dated 25th April 2016 and the enclosures therewith.

10. However, it was not clear as to what exactly the expert meant by “information available in the documents and records provided”, whether he referred to the factual information given by the Plaintiff or the medical information/opinions found, in the documents and records provided. The Defendant is entitled to ask the expert for clarification by way of cross-examination.

11. Further, if it was the factual information, then, if the Plaintiff gave different accounts of the facts in different documents or accounts, the Defendant is entitled to ask whether the expert knew about the difference and whether or how it would affect his assessment of the reliability of the Plaintiff and hence, his opinions as stated in the Report. In this regard, the Court must be aware that the Plaintiff gave lengthy evidence in court at the trial in the related criminal case against the Defendant.

12. If it was the medical information and opinion, then it is worth noting that there was no psychiatric report present among those documents provided by the Instructing Solicitors under their Letter of Instructions. Also, the expert did say in the Report that the Plaintiff did not have any pre-existing psychiatric illness. That means that the Plaintiff only developed psychiatric conditions after the incident. The Plaintiff is then entitled to ask without any previous psychiatric report to compare, how the expert assessed or detected consistency in medical information/opinion.

13. The above was only some examples of ways to test the evidence of the expert and hence, the court to decide the weight ought to be given to the opinions as stated in the Report.” (Emphasis in original)

18.Mr Ching in his paragraph 10 submits that the meaning of “information available in the documents and records provided” in Dr Hung’s report is unclear.  With respect, this cannot be right.  What has been said by Dr Hung in §15.4 of his report is “the information available in the documents and records provided by the instructing solicitors”.  That clearly means the information in the Instructions Letter and in the documents in Enclosure 1.  The basis of Dr Hung’s opinion in §15.4 of his report is clear and unambiguous.

19.That being the case, with respect to Mr Ching, the point made in his paragraph 11 is a non-point.

20.As to the point made in his paragraph 12, taking it at its highest, at most this is a submission point, which may be made by the defendant in the hearing for assessment of damages without any cross-examination.  The materials provided to Dr Hung have been clearly set out in the Instructions Letter.  On the basis of those materials, whether the opinion expressed by Dr Hung in his report is reasonable and reliable is open for comments, and the defendant would have the opportunity to make submissions on this in the hearing for assessment of damages.

21.Having carefully considered both the written and the oral submissions made by Mr Ching, I am not convinced that the defendant has demonstrated any issue in Dr Hung’s Report which ought to be investigated by cross-examination.

22.Further, I would not allow the defendant to just have an expert behind the scene.  If the defendant is able to find a psychiatric expert, the defendant should seek leave to put in an expert report made by her expert.  The parties are obliged to provide the best assistance to the court.  This would include providing to the court a joint report or the respective reports made by their experts.  This would also include having without prejudice discussion between their experts to find out the issues on which the experts are able to reach an agreement and the issues on which the experts are unable to agree with each other.  The experts may then in the joint report or their respective reports inform the court the agreed issues and the non-agreed issues, and the reasons for the non-agreement.  It would not be right to just have an expert behind the scene for the purpose of cross-examining the other side’s expert.  The court would not be ably assisted by this kind of practice.

23.For the reasons set out above, in my judgement, the defendant has failed to show a case justifying leave to cross-examine the other side’s expert.

24.The master mentioned the undertaking as to costs in the checklist review hearing.  Obviously, the cross-examination proposed by the defendant would prolong the length of the hearing for the assessment of damages and would increase the plaintiff’s costs.  The master said the costs involved would be about HK$20,000 or HK$30,000.  It seems that the master has required the defendant to demonstrate that she would be financially able to pay the costs occasioned by the proposed cross-examination.  The defendant’s financial ability is a factor having been taken into account in the master’s consideration. 

25.I respectfully differ from the master on this point.  As a matter of law, no security for costs should be required from a defendant who is exercising his right to defend himself against a claim.  See Hong Kong Civil Procedure 2017, Vol 1, §23/3/16.  In my judgment, the key question is whether the defendant is able to show a case justifying cross-examination.  If she cannot do so, that is the end of the matter.  If she has established such a case, she should be given leave to cross-examine.  It would not be right to require the defendant to show her financial ability in order to get leave to cross-examine, for this would tantamount to requiring a defendant to provide security for costs in civil litigation.

26.Notwithstanding the difference between the master and me on this point, as the defendant has failed to show a case justifying cross-examination for the reasons set out above, the defendant’s proposed cross-examination must be refused.  Accordingly, this appeal has to be dismissed.

27.I dismiss the appeal.  Costs of the appeal are to be paid by the defendant to the plaintiff.  Having heard the parties, I summarily assessed that the total of such costs (including the costs of the consent summons) be HK$18,000.  The plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.

28.Mr Ching asks me to allow the defendant to pay such costs within 3 months.  Mr Lam for the plaintiff submits that at most 1 month would be reasonable time.  I order that the defendant to pay such costs to the plaintiff within 1 month.  For the avoidance of doubt, this only means that there would be no enforcement action by the plaintiff before the expiration of the 1-month period.  Interest on those costs would still accrue from the date of this decision until payment at the judgment rate.  This is to give a clear message to the defendant that she has to pay the sum sooner rather than later.

29.I thank the parties for the assistance provided to this court.

Mr Lam Yung Wah Teddy of Boase, Cohen & Collins, assigned by the Director of Legal Aid, for the plaintiff

Mr Ching Ming Yu of Ching & Co, for the defendant