Leung Tak Hing v. Wu Anthony

HCPI 1327/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1327 OF 2016

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D E C I S I O N

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1.I would allow the appeal from the order of Master Harold Leong dated 25 July 2017. I do so for very special reasons. This is a special case which warrants a speedy trial because of the plaintiff’s substantially reduced life expectancy. It would not be just for the court to direct the plaintiff to substitute Professor Nutting with a local oncologist as his expert oncologist on liability because that is likely to cause further delay to the proceedings.

2.I do not want this decision to be a precedent.  Obviously, there are many factors that need to be considered and debated before the court can set out established principles in this area.  The impact of the CJR on the parties’ choice of experts has been seen in some cases.  I recall an early decision of mine in which I directed the plaintiff to change his expert for the reason that his chosen expert was one which no other medical professional in Hong Kong would like to deal with. Of course, that was an extreme case.

3.Clearly, one needs proportionality.  Is it proportional to incur additional costs and additional delay that may come with engaging overseas experts?  We have video link facilities, but video link has its limitations as opposed to the judge seeing the witness live in the witness box. Another factor is the knowledge of the overseas expert of local medical standards, and the knowledge of the overseas expert of local characteristics and any peculiar features of our local population.  Different considerations may apply when one considers engaging an overseas expert on liability as opposed to an overseas expert on quantum.

4.There was a point taken that an overseas expert does not have the right to practice medicine in Hong Kong, but I think that point was laid to rest as a result of the researches of Mr Sakhrani who identified, in Gazette GN 5231 dated 17 July 2015, Promulgation Number 10, which related to limited registration under the Medical Registration Ordinance, Cap 161, and, in effect, enables overseas experts to “practice medicine” in Hong Kong.  I set out Promulgation No. 10 in full as follows:

“G.N. 5231 MEDICAL COUNCIL OF HONG KONG

LIMITED REGISTRATION UNDER

MEDICAL REGISTRATION ORDINANCE (Chapter 161)

PROMULGATION NO. 10

The Medical Council of Hong Kong has determined that, until such time as the Council may determine otherwise, limited registration under section 14A of the Medical Registration Ordinance, Chapter 161, Laws of Hong Kong is appropriate in respect of the following employment:-

‘Employment by a firm of solicitors registered by the Law Society of Hong Kong to carry out a medical examination of a person in Hong Kong for the sole purpose of preparing a medical expert report on that person for use in a pending court proceedings in Hong Kong.’

The practice of a person registered with limited registration under this promulgation shall be subject to the restrictions and conditions as determined by the Medical Council of Hong Kong and stipulated in the letter of approval.

An applicant should be a medical practitioner registered with an approved medical authority outside Hong Kong.

Applications for limited registration under this promulgation should be made to the Registrar of Medical Practitioners in accordance with the guidelines published by the Medical Council of Hong Kong.

17 July 2015

Maggie CHOW Secretary, Medical Council of Hong Kong”

So that lays this point to rest.

5.Clearly, overseas experts are extremely welcome if they carry with them specialised knowledge which is not available amongst our local experts.

6.As I said, I do not want this decision to be a precedent, but these are the factors that would need to be debated at an appropriate time in a future case as well as the one point that I should mention, namely, the right of a party to engage an expert of his own choice; and also whether or not the costs of overseas experts ought to be allowed on a party and party taxation.  These are also matters to be debated in future.

7.As regards costs, the point taken in relation to the appeal was a very minor part of the hearing last time, which was largely taken up with the case management of this complex case which requires to be brought to court quickly.  In the circumstances, I am minded to make an order that the costs of the appeal be costs in the cause.  In the same vein, I set aside the order of Master Harold Leong and order that the costs of the hearing below be costs in the cause.

Mr Ashok K Sakhrani, instructed by Tsui & Co, for the plaintiff

Mr Frederick H F Chan, instructed by Mayer Brown JSM, for the defendant