Cheung, Joseph Wai Leuk v. Chan Kwok Ping (Chinese Name 陳國平)and Others

HCPI 264/2012

[2019] HKCFI 1384

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 264 OF 2012

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REASONS FOR DECISION

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1.These are the reasons why I refused the plaintiff’s application for further adjournment of the checklist review hearing, after hearing the parties.

2.Briefly, the plaintiff commenced this action for alleged injury caused to him during a Wing Chun martial art training session organized and provided by the defendants, which he attended in 2009.  He has been represented by solicitors assigned by legal aid.  At one stage, the parties were engaged in applications for striking out, specific discovery and joinder of defendant, which were followed by appeals.  By mid-2016, the parties reached consensus in respect of the disposal of the appeals.  They have filed joint orthopaedic expert report.  The statements of the witnesses on behalf of defendants were also ready, whereas the plaintiff requested further time.  However, the plaintiff’s legal aid certificate was discharged in October 2016.

3.After previous adjournments, the checklist review hearing was fixed to be heard before this court for the first time on 19 July 2018.  However, prior to that, the plaintiff requested in writing for adjournment on medical grounds.  He supplied a medical certificate, which suggested that he required inpatient treatment for mental illness and was unfit to attend court.  The defendants sensibly indicated no objection in the circumstances, and the hearing was adjourned to 16 November 2018.  Direction was given whereby the plaintiff must inform the court and the defendants prior to the resumed hearing of any circumstances that might affect his attendance.

4.In November 2018, the plaintiff wrote in to seek further adjournment.  The further medical certificate supplied suggested that he suffered from mental disorder and, whilst he has been discharged, he was unfit to attend court.  The defendants therefore, and I think legitimately, raised concern about the mental capacity of the plaintiff to handle the litigation.  In the circumstances, this court gave direction on the basis of the potential relevance of O.80 of the Rules of the High Court. Pursuant to that rule, a plaintiff who suffers from mental incapacity after the commencement of legal proceedings may carry on prosecuting the claim in the action only by a next friend.

5.The plaintiff replied, claiming that his medical condition under treatment was stable and he was not mentally incapacitated.  He claimed to be mentally capable of managing and administering his property and affairs as well as the legal proceedings.  He was just unable to attend court hearing due to stress, and would need to rest then for months. In view of the apparent inconsistency between the limited medical evidence supplied by the plaintiff and his own representation, this court gave directions for the plaintiff to supply a medical report from his treating doctor setting out the details of his hospitalisation, diagnosis, treatment, current condition and fitness to handle and to attend court proceedings.  In the meantime, the checklist review hearing was adjourned pending more objective consideration of the plaintiff’s capacity.

6.According to the further medical report subsequently supplied by the plaintiff, the diagnosis was delusional disorder, which is a form of mental disorder.  Nevertheless, the doctor observed that the plaintiff demonstrated coherent and relevant speech as well as good understanding about the procedure of court hearing.  On this basis, the plaintiff was said to be mentally capacitated to handle legal issues. Meanwhile the doctor stated that the plaintiff’s mood would easily fluctuate and he would feel stress when faced with court hearing.  On this basis, the plaintiff was said to be mental unfit to attend the court.  Upon that, this court gave further directions for further medical report to clarify specific aspects of the report.  The checklist review hearing was adjourned to the present.

7.Prior to this hearing, the plaintiff wrote in again seeking further adjournment.  The further medical report that he supplied was almost identical to the last one, save that the doctor, in response to the specific questions raised by this court in the last direction, stated that the plaintiff’s condition is expected to improve gradually, but it is difficult to tell the time frame or degree of recovery. Apart from relying on the same medical ground as before, the plaintiff also raised as a ground for the requested adjournment the hearing of his appeal against the discharge of his legal aid.  The hearing will be held on 13 June 2019.  He asked this court to adjourn the checklist review hearing until after the outcome of his legal aid appeal.

8.This court directed that the parties should attend the present hearing, when the application for adjournment will be decided after hearing the parties.  If the court ruled against the adjournment, the checklist review hearing would proceed.

9.At the end, I ruled against the adjournment, and for the following reasons:

(1)   Insofar as the medical ground is concerned, the medical evidence confirms that the plaintiff is capable of coherent and relevant speech as well as good understanding about the procedure of court hearing.  On this basis, he is said to be mentally capacitated to handle legal issues.  Hearing the plaintiff in person in court served to reinforce that.

(2)   Insofar as what caused the doctor to come to the view that the plaintiff is unfit to attend court, the basis is mainly one of concern about his stress that is said to cause fluctuation in his mood easily.  Stress arising out of court attendance per se is not extraordinary.  Whilst the medical opinion is for the doctor to provide, whether or not the plaintiff is in practical terms unfit to attend court is a fact that the court has to assess according to the sum total of the evidence[1].  Such medical evidence included the suggestion that the plaintiff’s condition would gradually improve.  Upon such assessment, and hearing the plaintiff in person, I resolved that I could not simply adopt the written conclusion of the doctor as to the plaintiff’s fitness to attend court.

(3)   Notwithstanding his resorting to the medical ground for excusing himself from court hearing, the plaintiff at the same time took the initiative to prosecute his legal aid appeal.  As mentioned, the appeal would be heard in June 2019, and the plaintiff himself obviously expected to conduct the hearing to conclusion. Further, during the present hearing, the plaintiff initiated the issue of direction in respect of psychiatric expert evidence for the purpose of this case.  He was also keen at responding to what the solicitor appearing for the defendants submitted that he considered to be inaccurate.  All these led me to the view that first, the concern at one point about the plaintiff’s capacity to sue should be ruled out at least at this stage; and second, the plaintiff demonstrated ability to withstand stress arising out of the normal conduct of court hearing.  If necessary, a party or a witness may be accommodated by appropriate breaks during any court hearing.  None was requested during the present hearing.

(4)   It is the duty of the court to balance the injustice that may result from granting and not granting the adjournment.  Also considering factors including the defendants at the receiving end of the litigation and their reasonable attitude towards the first two occasions of adjournment requested by the plaintiff, I thought it was only fair that the further proceedings in this action should delay no more unnecessarily.

10.Upon ruling against the application for adjournment, this court proceeded with the checklist review hearing, and directions were given at the end of that.

The plaintiff appeared in person

Miss Lo Hoi Ying, of Rowdget W Young & Co, for the 1^st, 2^nd and the intended 4^th defendants