Tsui Yuen (Formerly Known As Ho Wai Hung) v. Ho Tse Wai, Philip Li & Partners (A Firm) (Formerly Known As Ho, Tse & Wai & Partners)

HCA 587/2015

[2019] HKCFI 1447

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 587 OF 2015

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J U D G M E N T

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I. INTRODUCTION

1.The defendant (“D”) was a firm of solicitors practising in Hong Kong and the former solicitors of the plaintiff (“P”) assigned by the Director of Legal Aid (“DLA”). Ho Chun Yun Albert (“Ho”) and John Joseph Clancey (aka Mr Kwan, “Clancey”) were respectively a partner and a solicitor of D.

II.  BACKGROUND

2.P claimed he was admitted to Grantham Hospital (“GH”) on 21 June 1996 for treatment of tuberculosis. He underwent a lung operation on 13 August 1996, but was subsequently informed there were no malignant cells in his lungs. P claimed his right lower lobectomy was unnecessary. Shortly after he was discharged from GH in/about September 1996, by a written retainer prepared by D at its office (“Retainer”),[1] P engaged D (who was assigned by the DLA to act for P pursuant to a Legal Aid Certificate dated 28 February 1997) to sue the Hospital Authority (“HA”) for damages in respect of its medical negligence. On 15 August 1997, DLA issued a Notice of Assignment of Counsel. On about 20 May 1998, D on P’s behalf issued a Writ of Summons in HCPI 529/1998 (“PI Action”) against HA to claim damages for medical negligence.

3.According to the medical report dated 6 July 1999 by Dr Kwok Choi Hon (“Dr Kwok”) of the department of psychiatry (“PD”) at Tai Po Hospital (“TPH”), P became mentally unwell since late April 1999 when he started to hear voices from “spiritual field”, to believe his father and paternal uncle wanted to harm him, and to think his house was filled with “evil spirit” and his daughters were possessed by “evil spirit”.[2] P wrote a complaint letter to the police, and on 3 May 1999 brought his 2 daughters to the accident and emergency department of Alice Ho Miu Ling Nethersole Hospital (“AHNH”) complaining they had mental illness. P was admitted to AHNH. On/about 5 May 1999, P was transferred to TPH’s PD for psychiatric assessment. He was diagnosed to suffer from “paranoid psychosis” (which P claimed was recorded in the medical notes dated 8 June 1999), and was treated with neuroleptics. According to Dr Kwok’s medical report dated 6 July 1999, P’s mental state improved with medication, and he was discharged on 4 June 1999.

4.D claimed that on/about 13 May 1999 Clancey received a telephone call from P who informed him a doctor had admitted him to TPH and he had spent 1 week in a detention ward, but he was better and taking medicine. On/about 17 May 1999, Clancey had a conference with P and his daughter who was then 16 years old, and they discussed P’s mental state. On 20 May 1999, D wrote to the DLA for authorisation to have P’s treating doctor “prepare a medical report describing [P’s] current mental status and whether, in the doctor’s opinion, he has the mental capacity to make rational decisions regarding his legal affairs”. Upon receipt of DLA’s authorisation, D wrote to Dr Kwok on 29 May 1999 to request for such medical report. P was seen by Dr Kwok on 4 June 1999, and Dr Kwok’s medical report dated 6 July 1999 stated inter alia as follows:

“2. [P] was last seen on 4/6/1999, mental state examination showed he was free from psychotic symptoms with stable mood and normal cognition.

3. [P] was considered to have recovered from mental illness and have the mental capacity to make rational decisions. As long as he continue to take psychiatric medications and remain mentally stable, he is medically capable of full-time employment ……”

On the aforesaid basis, P claimed he was a mentally incapacitated person (“MIP”) within the meaning of the Mental Health Ordinance Cap 136 (“MHO”) before 6 July 1999.

5.P claimed the medical report dated 19 December 2014 by Dr Tam Mo Shing Paul (“Dr Tam”) of Union Hospital (“UH”) stated inter alia as follows:

“I am familiar with the meaning of [MIP] under the [MHO]. In my opinion, [P] was certainly not a case of MIP during my interview recently. On the other hand, he was certainly a case of MIP when he was judged serious enough to merit admission before Dr Kwok’s report on 6^th July, 1999. The period between 1^st May, 1999 and 4^th June, 1999 would be particularly poor according to the reports and progress sheets.”

Relying on (a) such medical report that concluded by saying for the period before 22 September, 1999 there was also a distinctive probability that P had been mentally incapacitated, and (b) TPH’s medical notes before 22 September 1999 that recorded on 18 September 1999 P’s diagnosis was still “paranoid psychosis” with complaint of electromagnetic wave emitting from his head, P claimed he was a MIP under the MHO on/before 22 September 1999.

6.D claimed that (a) on 22 September 1999 Clancey/Ho met P at D’s offices and discussed the PI Action in detail, (b) P provided D with instructions to settle the PI Action for $1,100,000 plus costs and signed a Chinese written instruction for settlement of the PI Action (ie “本人何偉雄現願意接受港幣$1,100,000.00 (包括利息) 作為[PI Action]之最後賠償金額”, “Written Instruction”), and (c) D then had without prejudice settlement negotiations with HA’s solicitors. P claimed that given his aforesaid poor mental health condition, he was mentally incapacitated and could not understand the legal implication/consequence and further arrangement for settlement/PI Action.

7.P claimed that on 13 November 1999 he was further diagnosed as continuous paranoid schizophrenia with increasing irritability and auditory hallucination by AHNH’s specialist outpatient clinic (“SOPD”) as evident from the progress sheet of AHNH’s SOPD (Psychiatry), so before or between 13 November and 13 January 2000 P was still suffering from poor and unstable mental health condition, relapse of auditory hallucination and persecutory delusion.[3]

8.But D claimed P later instructed $1,100,000 was “too little”, and wrote to D on 24 November 1999 to say the proposed compensation was insufficient and to ask for copy Statement of Claim (“SoC”), Defence and counsel’s opinion. D claimed it provided the requested documents to P, and did not hear further from him, so on 14 December 1999 the DLA issued a Notice of Discharge of Legal Aid.

9.In the meantime, P claimed that on 13 January 2000 he was diagnosed by Dr Cheung Kit Ying Kimmy (“Dr Cheung”) with relapse of schizophrenia, paranoid type[4] after deterioration of mental state for the previous 2 months as he was under poor mental health condition, believing his younger daughter was controlled by ghosts and attempting to chop her with knife. P had also thought of setting fire at home to kill the ghost. P claimed that between 13 January and 16 February 2000 he was admitted to TPH for his poor mental condition, and even though he was discharged home on 16 February 2000, he was assessed/listed by Dr Pang Hin Fat Alfred as a priority follow-up target as noted in TPH’s inpatient summary dated 14 January 2000. P also averred he had to take antipsychotics on long-term basis, and to be monitored by community psychiatric nurse. According to such nurse’s observation in the progress report dated 15 March 2000, P could not plan for the future. Thus, P claimed he was a MIP under the MHO before 20 April 2000.[5]

10.D claimed that (a) on 18 April 2000 the DLA re-assigned D as the assigned solicitors for P in respect of the PI Action and issued a Legal Aid Certificate, (b) P then instructed D that he agreed to accept $1,110,000 (plus costs) in full and final settlement of his claim in the PI Action against HA, and (c) a bilingual written confirmation (in English and Chinese) was drafted by D and explained to P, which P signed on 20 April 2000 (“Written Consent”):

“I agree to accept the sum of HK$1,100,000.00, plus legal costs, in full and final settlement of my claim against [HA].

I accept that the payment of the said sum is made:

1. without admission of liability on the part of [HA] or any of its employees; and

2. subject to a condition of confidentiality: no details of the settlement can be disclosed to any party without the consent of [HA].”

On the other hand, P claimed that at a meeting with Clancey at D’s offices on/about 20 April 2000 he was asked to sign the Written Consent. P said he expressly told Clancey he could not understand the Written Consent, but was persuaded to sign the Written Consent for settlement under pressure from Clancey. Further, despite P’s expression of lack of understanding, Clancey told him he could not tell anyone about his mental illness or HA would ask for refund of damages.

11.By a Consent Order dated 17 May 2000 (“Consent Order”), the PI Action was settled in the form of a Tomlin order that all further proceedings in respect of P’s claim in the PI Action were stayed pursuant to HA’s agreement to pay $1,100,000 in full and final settlement with agreed costs in the sum of $242,409.50. P claimed the Consent Order was perfected by the court because the court was not aware of or informed by D about P’s mental condition before and at the time of the Consent Order, which was diagnosed by Dr Cheung on 16 February 2000 as a case of “paranoid schizophrenia”. Thereafter, P needed to continuously take various antipsychotics daily, including Stelazine 15mg noct and Artane 2mg noct.

12.There was no dispute that on/about 26 May 2000, D gave P a cheque in the sum of $490,713 (which P believed was part of the settlement sum in respect of the PI Action), and gave the DLA a cheque for the balance of the settlement sum in the sum of $600,000.

III.  P’s CLAIM

13.On 20 March 2015, ie almost 15 years after the Consent Order, P by his former solicitors commenced the present action against D. The SoC endorsed on the Writ of Summons (“SoC”) averred that (a) before 20 April 2000 P was a MIP within the meaning of the MHO, (b) on/about 20 April 2000 when P was asked to sign the Written Consent he expressly told Clancey he could not understand the Written Consent, but in the end he was persuaded to sign “under pressure” from Clancey, and (c) Clancey told P not to tell anyone about his mental illness or HA would ask for refund of damages.

14.P’s pleadings went on to aver as follows:

(a)	In 2001, P married his 3rd wife Tang Siu Yin (“3rd Wife”) who later gave birth to their daughter Ho Hoi Ching (“3rd Daughter”).
(b)	Since 2002, because of P’s mental condition and unbeknownst to him,[6] the settlement sum received was “dispatched by himself under abnormal behaviours”, ie by giving out money to strangers standing near him,[7] emptying his wallet to strangers in the street,[8] and throwing money on the streets.
(c)	Since 2003 P was admitted to Siu Lam Psychiatric Centre for his mental condition (ie paranoid type schizophrenia), and in the same year, upon the 3rd Wife’s oral requests, the settlement sum he received for the PI Action was “withdrawn from [P’s] account” with The Bank of East Asia, Ltd on many occasions via ATM machine and over bank counter.[9]
(d)	P and the 3rd Wife divorced in 2006 when the settlement sum received was exhausted.[10] The decree nisi was pronounced on 4 September 2007. The 3rd Wife/Daughter moved out without further contact, maintenance or return of the settlement sum received by P.
(e)	On 5 October 2009, P was admitted to TPH for schizophrenia and suicidal idea. According to Dr Tam, P ceased to be a MIP after his discharge from TPH on 14 October 2009.[11]

15.P claimed that in breach of contract and/or negligently D failed inter alia (i) to exercise care and skill and/or recognise/make adequate inquiry into / inform and seek direction from the court that P was a MIP and unable to administer his own property and affairs, and (ii) to explain/ascertain whether P could understand the terms of the Consent Order for settlement of the PI Action:

(a)	disregarded / ignored / failed to discover and/or appreciate P was a MIP and/or under disability due to his mental illness during the PI Action and/or before grant of the Consent Order for settlement;
(b)	failed to make any or any adequate enquiry as to whether P was under disability pursuant to the MHO during the PI Action and/or before the grant of the Consent Order for settlement;
(c)	failed to make any or any adequate inquiry as to whether P could administer his own property and affairs under disability, in particular, the administration of compensation recovered in the PI Action during the PI Action and/or before the grant of the Consent Order for settlement;
(d)	failed to explain or give adequate explanation to P as to the terms of the Written Consent and/or Consent Order, particularly the legal implications/consequences of signing, acknowledging and/or approving settlement of the PI Action;
(e)	failed to make any or any adequate inquiry and/or to take any or any adequate step to ascertain whether P was able to understand the content and legal implications of the PI Action and terms of settlement in the Consent Order, knowing P was suffering from mental illness and having been admitted to TPH;
(f)	failed to inform the court of P’s mental disability and to seek approval of the settlement and proper costs order payable to D pursuant to Order 80 rules 10(a), 11(1) and 12 of the Rules of the High Court (“RHC”);
(g)	failed to seek directions from the court as to how the money recovered from the PI Action was to be applied or dealt with pursuant to Order 80 rule 12 of the RHC;
(h)	caused, permitted or allowed P as a MIP under the MHO to be unprotected by law and procedure from proper arrangement and management of the settlement sum received which was his property.

16.P claimed that as a result of the above he was “exploited by his relatives financially”, which caused him to be unable to maintain himself and to pay his medical expenses from the settlement sum received in the PI Action, and he thereby suffered “loss and damage to be assessed”.

17.D claimed P did not plead particulars of the loss and damage he allegedly suffered nor any factual case as to how D’s alleged actions / omissions could have caused any loss/damage to him, so D requested for further and better particulars. On 26 May 2015, P filed the 1^st answer to D’s request for further and better particulars of the SoC (“1^st FBP”), and averred that the total amount P “despatched” under abnormal behaviour since 2000 amounted to over $130,000, and the total amount further withdrawn from P’s bank account since 2003 amounted to about $200,000-$500,000, but because of his poor mental health condition P was unable to understand the reality and/or to resist the requests to pay out the settlement sum received. On 15 January and 2 February 2018 P sent to D’s solicitors 2 versions of his 2^nd answer to D’s request for further and better particulars of the SoC (“2^nd FBP”), which were substantially the same except for minor stylistic differences, but the 2^nd FBP was not filed with court. By the 2^nd FBP, P averred that:

“1  我由1998 年起已成為精神分裂症長期病患者。20 年來打針吃精神葯物，以後也需要每晚吃藥。本人要求這項補償$1,200 萬元。

‚2  我由1996 年起至本人65 歲都無法工作，損失工作年期29 年，每年損失工資48 萬元，合共$1,392 萬元。

ƒ3  家庭上的損失，本人要求補償300 萬元。

„4  本人要求補償本人已支付的律師費及醫生費，合共60 萬元，合共$2,952 萬元。

…5  何韋鮑律師行要支付法庭費用。”

IV.  D’s DEFENCE

18.D denied liability in its Defence filed on 24 June 2015. D claimed P was not an MIP at the material times, and was capable of understanding the issues and making the necessary decisions in the PI Action. D also did not accept there was any breach of duty or failure to advise on their part:

(a)	D was unaware P was admitted to TPH on/about 5 May 1999 with diagnosis of paranoid psychosis and was discharged on 4 June 1999.[12] It was only on/about 13 May 1999 that Clancey learned from P (i) a doctor admitted P to TPH’s PD, (ii) P spent 1 week in a detention ward, and (iii) P might be discharged in early June 1999. P disagreed, and claimed to have informed Clancey he became “insane” when he was admitted to TPH’s PD on/about 13 May 1999, and instead of feeling better his psychotic symptoms of “hearing voice” continued on the following days.
(b)	On/about 17 May 1999, Clancey had a conference with P and his elder daughter (who was about 16 years old at the time) when P informed Clancey inter alia he had psychiatric problems and had been hospitalised for more than 10 days whereupon Clancey told him inter alia D would need a letter from P’s doctor regarding his mental state and his daughter must be 18 years old before she could act as his next friend in the proceedings. P disagreed, and averred he was granted “home leave” on 17 May 1999 during his hospitalisation to meet Clancey, and he expressly informed Clancey during the meeting he was “insane”, but when he returned to TPH’s PD after parole on the same day he was found to be paranoid by the attending psychiatrist and was detained immediately.
(c)	On/about 20 May 1999, D wrote to inform the DLA inter alia it received information that P had been committed to TPH because of psychological/psychiatric problems, and to seek DLA’s authority to have the treating doctor prepare a medical report describing P’s “current mental status and whether, in the treating doctor’s opinion, he has the mental capacity to make rational decisions regarding his legal affairs”. P claimed he had no memory of this due to his unstable mental status at the material time.
(d)	Upon receipt of DLA’s authority, D wrote to Dr Kwok on/about 29 May 1999 asking him to provide a medical report describing P’s “current mental status capacity” and “whether in your opinion he has the mental capacity to make rational decisions regarding his affairs in general and his legal affairs in particular”. P claimed he had no memory of this due to his unstable mental status at the material time.
(e)	On/about 1 June 1999, Clancey received further telephone call from P who told him inter alia that (i) he was concerned he would not get a fair compensation, (ii) he was discharged from hospital, took his medicine and felt better with medicine, (iii) he had taken back his younger daughter, and (iv) he wanted to know the date of the next hearing in the PI Action. P disagreed, and averred that during this period he was rebelling against the doctor’s advice of “depot” antipsychotic therapy and strongly refused long-term schizophrenia injection, so his mental status was unstable in/after June 1999, and in fact P was pre-occupied at that time with some “forgotten memory” about his father and his uncle who had hit him in the past.
(f)	on/about 24 June 1999, D wrote to Dr Kwok asking him to give opinion upon inter alia (i) a brief description of the P’s current psychiatric state, (ii) whether P had the mental capacity to make rational decisions regarding his affairs in general and his legal affairs in particular, and (iii) his assessment of whether P would fully recover from his current psychiatric problems and if so, how long the recovery process would take.
(g)	The medical report dated 6 July 1999 by Dr Kwok[13] opined that (i) P was considered to have recovered from mental illness, (b) P was considered to have the mental capacity to make rational decisions, and (c) as long as P continued to take psychiatric medications and remained mentally stable, he was medically capable of full-time employment, and further stated that P’s mental state examination on 4 June 1999 “showed he was free of psychotic symptoms with stable mood and normal cognition”, so D put P to proof that before 6 July 1999 P was a MIP under the MHO.

19.D claimed it reasonably relied on Dr Kwok’s medical report dated 6 July 1999 to come to the view that P was capable of giving instructions in respect of the conduct of the PI Action, and after receipt of such report D did not notice any change in circumstances and had no cause to doubt P’s mental capability. D claimed to have various telephone calls and conferences with P (including telephone calls on 24 June and 22 July 1999 and conferences on 22 June, 18 July and 22 September 1999), and averred P appeared to be mentally capable, rational, and capable of understanding and of giving instructions in respect of the conduct of the PI Action and of handling his own affairs. D claimed P actively discussed the PI Action and potential settlement, and was well aware of the events, asked questions and gave instructions.^[14] In short, D reasonably continued to believe P was mentally capable, rational and capable of giving instructions as to the conduct of the PI Action and the handling his own affairs. D then took reasonable steps to explain the PI Action, the Written Consent and the settlement of the PI Action to P.

20.D claimed that at the conference at D’s offices on 22 September 1999, Clancey/Ho discussed the PI Action with P in detail (including discussions on the findings in the expert medical reports, P’s ability to work, counsel’s written advices, potential settlement sum and legal aid issue), and P clearly understood the advice given to him, on his own initiative suggested/instructed D to make counter-proposal for settlement to HA, and provided D with instructions to settle the PI Action for $1,100,000 plus costs.[15] D claimed P confirmed his understanding and signed the Chinese Written Instruction that was clearly explained to him, and that he confirmed he understood before he signed it.

21.D further claimed that:

(a)	after P confirmed his instructions/understanding and signed the Written Instruction, D sent without prejudice letter to HA’s solicitors on 23 September 1999 offering to accept $1,200,000 plus costs in settlement of the PI Action;
(b)	on 25 October 1999, P telephoned Clancey asking whether D received any response from HA’s solicitors, informing D he “might not be happy with receiving HK$1.2 million”, and saying D had not been done enough to assist him, so Clancey responded that if P was not happy with what D was doing, he should approach the DLA to see if it would assign a new solicitor;[16]
(c)	on 3 November 1999, D received without prejudice letter from HA’s solicitors offering $1,000,000 in full and final settlement of the PI Action;
(d)	on 4 November 1999, Clancey explained the without prejudiceoffer from HA’s solicitors in telephone call with P who asked if D “could get a bit more”;
(e)	on 6 November 1999, P attended conference with Ho/Clancey who explained HA’s offer and counsel’s advice to P, who instructed D to try to obtain another $100,000;
(f)	on 8 November 1999, Clancey made a without prejudice telephone call to HA’s solicitors asking for increase of HA’s offer to $1,100,000 plus costs whereupon HA’s solicitors asked for an indication of D’s costs to date;
(g)	on 20 November 1999, D sent without prejudice letter to HA’s solicitors offering to accept $1,100,000 plus costs in settlement of the PI Action and enclosing a draft bill of costs;
(h)	but at a conference with Ho/Clancey on 22 November 1999, P instructed D he did not want $1,100,000 as it was “too little” to which Ho explained it was the best he could expect to get, and P should inform the DLA to obtain approval to proceed to trial or to get another lawyer;[17]
(i)	on 30 November 1999, D reported in writing to the DLA inter alia that P told them he had applied to the DLA to assign another solicitor to represent him, but based on counsel’s advice P had agreed to accept $1,100,000 in settlement of the PI Action even though he later told D he no longer wished to accept such sum as he considered he was entitled to more (D had explained to P that counsel’s opinion was based on expert medical opinion and other evidence);
(j)	on 14 December 1999, the DLA issued a Notice of Discharge of Legal Aid;
(k)	D had no further contact with P after giving him the documents he requested at the end of November 1999 until April 2000;
(l)	on 18 April 2000, the DLA re-assigned D as solicitors for P and issued a Legal Aid Certificate.

22.D claimed that during meetings and telephone calls in September and November 1999, P appeared rational, mentally capable of understanding the proposed settlement and the giving instructions in respect of the conduct of the PI Action and of handling his own affairs,[18] and he was inquisitive, asked sensible/relevant questions and was quick to ask D for updates in relation to the proposed settlement, so D had no reason to doubt his mental capacity.[19]

23.D claimed that in April 2000 P expressly instructed D he had given the matter some thought and wished to accept $1,100,000 plus legal costs in full and final settlement of the PI Action, and Clancey/Ho discussed at length with P the implication of settling the PI Action, and D drafted the bilingual Written Consent in accordance with P’s specific instructions. Its contents were clearly explained to P who confirmed his understanding before he signed on 20 April 2000. At the meeting on 20 April 2000, Clancey/Ho had no cause to doubt P’s mental capability as P continued to appear rational, mentally capable of understanding the proposed settlement, and fully capable of handling his own affairs.

24.D denied (a) P told Clancey he could not understand the contents of the Written Consent, (b) Clancey told P he could not tell anyone about his mental illness or HA would ask for refund of compensation (but Clancey said the settlement was confidential and P should keep the terms of settlement confidential and not disclose the settlement sum to his friends) and/or (c) P did not understand the contents of the Written Consent or he only signed it under “pressure”.[20]D put P to strict proof of P’s alleged mental condition which the court should have been apprised of when the Consent Order was perfected on/about 17 May 2000.

25.D claimed it had no knowledge of P’s mental condition since 2002/2003. D averred that in any event there was no causal link between D’s alleged actions/omissions and P’s use of the settlement sums. D claimed that P’s alleged inability to resist the 3^rd Wife’s requests to make withdrawals from his bank account and to take her on shopping trips to boutiques did not in any logical way lead to a conclusion that P was incapable of managing his own affairs.[21] Rather, D averred it was reasonable to infer P was mentally capable of managing his own affairs between 2000 and 2009 when he (a) continued to care for his daughters after 2000, (b) legally married his 3^rd Wife during 2001, (c) was legally capable of divorcing his 3^rd Wife during 2006, (d) applied for and signed various loan agreements with United Asia Finance Limited, Promise (Hong Kong) Co Limited and Public Finance Limited during late 2007 and early 2008, (e) applied for Comprehensive Social Security Assistance on his own in early 2008, (f) approached D for legal advice on and to represent him in bankruptcy proceedings during early 2008, and (g) was declared bankrupt during March 2008. Further, and in any event, P could not rely upon a presumption of continuance regarding MIP status (which was not admitted).

26.D averred that the prevailing limitation period for P to bring a claim against the D had expired, and the present action should be dismissed upon that ground alone.[22]

V.  PROCEEDINGS

27.On 6 March 2017, P filed Notice to Act in Person. On 5 April 2017, P and D exchanged and P filed his own witness statement dated 27 July 2016 and Ho’s and Clancey’s witness statements. On 24 August 2017, D filed the psychiatric expert report of Dr Josephine GWS Wong dated 11 August 2017. On 9-10 October 2017, P and D filed the joint psychiatric expert report by Dr Josephine GWS Wong (for D) and Dr Tam (for P) dated 6 October 2017.

28.On 9 April 2018, D filed a summons for an order that (a) the SoC be struck out in its entirety and the action be dismissed under Order 18 rule 19 of the RHC and/or under the inherent jurisdiction of the court on the grounds that (i) it discloses no reasonable cause of action, (ii) it is scandalous, frivolous or vexatious, (iii) it may prejudice, embarrass or delay the fair trial of the action and/or (iv) it is an abuse of the process of the Court, (b) all further proceedings in the present action against D be stayed pending the final determination of such summons, and (c) the costs of the present action (including costs of and occasioned by this summons) be to D on indemnity basis to be taxed if not agreed (“Summons”). On 9 April 2018, D filed Ho’s affirmation in support of the Summons (“Ho Aff”). On 8 May 2018, P filed his 1^st affirmation in opposition (“P 1^st Aff”).

29.On 26 November 2018, Master Ho struck out the SoC and dismissed the present action on the grounds in paragraph 28(a)(i)-(iv) above, made no order on the relief referred to in paragraph 28(b) above, and ordered P to pay D costs of the action (including costs of and occasioned by the Summons) with certificate for counsel on party-and-party basis to be taxed if not agreed (“Order”).

30.On 21 December 2018, P filed Notice of Appeal to set aside the Order, and sought leave to appeal against the Order out of time (“Appeal”). On the same day, P filed his 2^nd affirmation (“P 2^nd Aff”) alleging Master Ho failed to consider all the circumstances and all the legal principles and evidence, the Order contravened the principles of fairness, and Master Ho discriminated against him as a patient with mental illness and favoured Ho and “民主派領袖”. The Appeal came before me for hearing on 15 March 2019 (“Hearing”).

VI.  AFFIRMATION EVIDENCE

31.Ho Aff  The Ho Aff summarised the background as Ho understood, P’s claim and D’s defence. On the matter of P’s alleged loss and damage, the Ho Aff claimed that:

(a)	SoC – P did not plead any particulars as to the loss and damage P claimed to have suffered or any factual case as to how D’s alleged actions or omissions could have caused any loss/damage to P;
(b)	1st FBP – it was averred the total amounts P “dispatched under abnormal behaviours” since 2002 amounted to over $130,000 and the amounts “withdrawn” from his account since 2003 amounted to $200,000 to $500,000;
(c)	P’s witness statement – paragraphs 25-30 of P’s witness statement stated inter alia that as a result of D's negligence and/or breach of retainer P obtained a less favourable settlement in the PI Action than what he would otherwise have obtained thus causing him to suffer loss and damage, but such allegation did not form any part of P’s case pleaded in the SoC, which averred that D failed to exercise care and skill and failed to recognise / make adequate inquiry into / inform and seek direction from the court that P as a MIP was unable to administer his own property and affairs, and failed to explain / ascertain whether P could understand the terms of the Consent Order, and as a result thereof he was financially exploited by his relatives, which led to him become unable to maintain himself and pay his medical expenses from the settlement sum received in the PI Action, so P’s pleaded case in the SoC was not supported by and/or was inconsistent with P’s witness statement;
(d)	2nd FBP – upon D’s request to P to (1) state the precise amount of the “loss and damage” which P claimed to have suffered, (2) provide full particulars as to the computation of each such head of loss and damage, and (3) identify the material facts upon which the computation was based for each such head of loss and damage, P served the 2nd FBP as follows: (i) P had been suffering from long-term schizophrenia since 1998 and had required injection/medication for the past 20 years, and P still had to take medication every night, so P sought compensation in the sum of $12,000,000; (ii) P had / would have lost his ability to work for 29 years (from 1996 and until he would reach the age of 65), and his annual loss of earnings was $480,000, so P sought compensation in the sum of $13,920,000; (iii) P sought compensation for loss relating to family in the sum of $3,000,000; (iv) P sought compensation for legal/medical fees he had incurred in the amount of $600,000, so the total compensation P sought amounted to $29,520,000, and P claimed D had to pay the “court fees” (see paragraph 17 above).

32.Ho claimed the 2^nd FBP made P’s case even more confusing in that it suggested the alleged loss and damage P now purported to claim did not relate to and could not have arisen from the matters pleaded in the SoC. The alleged breaches of contract and/or negligence on the part of D (as set out in paragraph 26 of the SoC), even if proved, could not have caused the alleged loss and damage particularised in the 2^nd FBP, which were also inconsistent with (a) P’s case in the SoC and the 1^st FBP that D caused him inter alia to be exploited financially by his relatives, and (b) P’s statement evidence that D caused him to receive a less favourable settlement in the PI Action than what he would otherwise have obtained. Ho claimed the alleged losses pleaded in the 2^nd FBP were neither supported by the material facts pleaded in the SoC and the 1^st FBP nor by P’s own statement evidence, and P had not provided any documentary evidence whatsoever in support of the alleged losses/damages pleaded in the 2^nd FBP or his claim in his witness statement that he ought to have received a more favourable settlement in the PI Action. Ho said it was obvious from all of the above inconsistencies, lack of particulars and contradictions in P’s pleadings as well as in his witness statement that the claims pleaded in the SoC were plainly unarguable and unsustainable and ought to be struck out.

33.P 1^st Aff  P deposed to the 4 grounds relied on in the Summons for striking out the SoC and dismissing P’s claim (see paragraph 28 above) as follows:

(a)

No reasonable cause of action – P claimed he had pleaded a reasonable cause of action in the SoC, ie in/about 1997-2000 D did not take reasonable or proper steps and did not properly handle his medical negligence claim, and was therefore in breach of contract and/or was professionally negligent. P as a MIP could not handle the PI Action or give instructions to D, and he could not handle his own property and affairs, but D failed to exercise duty of care and skill in providing legal services to P, and failed to make sufficient enquiry, to seek court directions and/or to provide sufficient information/explanation in relation to the settlement of the PI Action and the terms thereof, and as a result P was financially exploited by relatives which led to exhaustion of the settlement sum received, so P was unable to support his living and medical expenses from the settlement sum received. P argued that D made erroneous judgment and was professionally negligent, and he suffered loss and damage to be assessed.

(b)

Other grounds – D’s suggestion that P’s case was weak was not a ground for striking out the SoC and dismissing his claim. D had to prove P’s claim was obviously unsustainable, impossible and not just improbable to succeed. P presently acted in person, but would in future seek legal advice on his pleadings and witness statement with a view to possibly amend his pleadings or file supplemental witness statement. P claimed that any inadequacy of his pleadings and witness statement could be corrected. The Summons was unreasonable and purported to remove his right to bring legal action, and was therefore in breach of the Basic Law and Bill of Rights.

34.P claimed D adopted a bullying tactic, and “不是以能勝任及具備合理經驗的事務律師應有的合理水平技巧及謹慎程度行事”.

VII.  LEGAL PRINCIPLES: STRIKING OUT

35.The principles governing striking out applications are well established. Hong Kong Civil Procedure 2019 provides as follows:[23]

“…... It is only in plain and obvious cases that the court should exercise its summary powers to strike out the indorsement on any writ or any pleading under this rule. There should be no trial upon affidavit. Disputed facts were to be taken in favour of the party sought to be struck out. Nor should the court decide difficult points of law in striking out proceedings. The claim must be obviously unsustainable, the pleadings unarguably bad and it must be impossible, not just improbable, for the claim to succeed before the court will strike it out. ……

Plain is not the same as simple and obvious is not the same as short. …… The mere fact that the case is weak and not likely to succeed is no ground for striking it out ……

It is for the party seeking to strike out an indorsement or pleading to demonstrate that the case is a plain and obvious one in which the other party’s claim is bound to fail. ……”

But the fact a question of law appears difficult/obscure does not necessarily preclude the court from striking out pleadings if it is satisfied it has all the necessary information to decide the question, and has come to the conclusion after full argument in the face of all relevant information that the case is plainly and obviously one for striking out. In such circumstances, the court “should not decline to do so on the ground that the issues are difficult or complicated”.[24]

36.No reasonable cause of action  A reasonable cause of action means “a cause of action with some chance of success when only the allegations in the pleadings are considered ……”[25] No affidavit evidence is admissible on an application under Order 18 rule 19(1)(a) of the RHC.[26]

37.Frivolous or vexatious claim  Hong Kong Civil Procedure 2019 states that:[27]

“…… A proceeding is frivolous when it is not capable of reasoned argument, without foundation or where it cannot possibly succeed. A proceeding is vexatious when it is oppressive and/or lacks bona fides.

In Yifung P roperties Ltd v. Manchester Securities Corp, (unrep., HCA 1341 and 1359/2014, [2015] H.K.E.C. 2182), Au Yeung J stated:

12. … Where a litigant brings a claim knowing that there is no substance in it or that it is bound to fail, or if the claim is on its face so manifestly misconceived that it can have no prospect of success, it may be deemed frivolous and n abuse of process …… the court should see what the party in question knew or ought to have known if he had gone about the matter seriously ……

13. … Vexatiousness implies the doing of something over and above that which is necessary for the conduct of the litigation and suggests the existence of some spite, or desire to harass the other side to the litigation, or some other improper motive ……

14. To decide that the litigant has been frivolous or vexatious and thus abused the process of the court is a serious finding to make, for it will generally involve bad faith on his part and one would expect the discretion to be sparingly exercised.[28]

In exercising a judicial discretion to determine whether proceedings are vexatious …… the court may admit affidavit evidence ……”

38.Abuse of the process of the court Order 18 rule 19(1)(d) of the RHC confers upon the court powers hitherto exercised under the court’s inherent jurisdiction where there appears to be an abuse of the process of the court. The process of the court must be used bona fide and properly, and the court will, in a proper case, summarily prevent its machinery from being used as a means of vexation/oppression in the process of litigation.[29] Hong Kong Civil Procedure 2019 states as follows:[30]

“   The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances and for this purpose considerations of public policy and the interests of justice may be very material.

In Tam Chi Kok, it was said that:

“[t]his is a case where a plaintiff commences an action when he does not know how to formulate his case. In other words, he sues before he knows what to sue, or before he can make up his mind as to the subject matter of his complaint. …… and of course it is of the function of a statement to set out precisely what a plaintiff wishes to sue and ask the court to grant him relief about.””

Likewise, To J in Falcon Private Bank Ltd v Borry Bernard Edouard Charles Limited & anor said as follows:[31]

“(b) A party should know his case and be in a position to identify the relevant evidence when he starts a claim. It is an abuse of the process of the court for a party to start a case without a solid foundation hoping that evidence will turn up during the course of the proceedings, whether by discovery or otherwise: Nomura International plc v Granada Group Ltd [2008] Bus LR 1 at §37 per Cooke J; New China Hong Kong Group Ltd v Ng Kwai Kwai Kenneth, HCA 519/2010 at §70 per Fok JA. ……”

39.Amendment  Hong Kong Civil Procedure 2019 states inter alia as follows:[32]

“…… This rule also empowers the court to amend …… any pleading. If a statement of claim does not disclose the cause of action relied on, an opportunity to amend may be given, …… However, unless there is reason to believe that the case can be improved by amendment, leave will not be given.

…… If the proposed amended SOC could not survive the striking-out application, it would be futile to allow the application: LY Group Development Ltd v. East Canton Ltd [2015] 4 H.K.L.R.D. 84 (at [12] – [13]). However, where the amendments would be far‑reaching and so radical as to amount to a totally new pleading which would probably provoke a fresh application to strike out, the correct course is to strike out. ……”

In Total Lubricants Hong Kong Limited & ors v Christophe de la Cropte de Chanterac & ors, Poon J (as he then was) said as follows:[33]

“14. First, if a pleading is capable of being cured by amendments, it should not be struck out. An opportunity to amend should be given instead. However, if the pleading is so defective that no amendment can cure it or if the proposed amendment is incapable of improving the defects, the pleading is liable to be struck out and the proposed amendment should be refused.

15. Second, when a party seeking to amend his pleadings in order to save it from being struck out, the proposed amendment should be properly and exactly formulated, includes all necessary averments or mandatory particulars and constitutes a full and complete plea of a reasonable cause of action.”

VIII.  LEGAL PRINCIPLES: MASTER APPEAL

40.Order 58 rule 1(3) of the RHC provides inter alia that unless the court otherwise orders, notice of appeal against a master’s decision or order must be issued within 14 days after the decision or order appealed against was given or made. Under the proviso “unless the court otherwise orders” in Order 58 rule 1(3) of the RHC and pursuant to Order 3 rule 5 of the RHC, the court has a discretion to grant enlargement of time to appeal.

41.In Postwell Ltd v Cheng Kap Sang,[34] DHCJ Wong Yan Lung SC stated that:

“...... Although I agree ...... that the absence of an acceptable explanation for the delay does not preclude the court’s discretion to extend time, I am of the view that in applications for extension of time to appeal an adverse order or adjudication, as opposed to extension of time to remedy other procedural default, the court should be slow to accede to the application in the absence of an acceptable reason for the delay.”

42.In considering whether to extend time to appeal, the court has to consider all relevant factors, particularly (a) the length of the delay, (b) the reasons for the delay, (c) the merits of the proposed appeal, and (d) the degree of prejudice to the other party.[35] DHCJ Peter Ng SC (as he then was) in Hady v Bazar[36] reminded that after the Civil Justice Reform it is incumbent on the court to give effect to the underlying objectives of the RHC when exercising any of its powers (see Order 1A rules 1 and 2 of the RHC), but the court must always recognise the primary aim in exercising the powers of the court is to secure the just resolution of disputes in accordance with the substantive rights of the parties (see Order 1A rule 2(2) of the RHC).

43.Here, the Appeal against the Order should have been brought on or before 10 December 2018. However, P only filed the Appeal on 21 December 2018. Whilst recognising P was self-represented at the relevant time, I note he did not give any explanation for the delay. He had not explained what efforts/enquiries (if any) he had made to ascertain the proper procedure against the Order for the period from 26 November to 21 December 2018. As I have said in Tsao Chi Ching v Tsao Lung May, there may not be many litigants acting in person who are aware of the time limit for appeal, but upon receipt of an adverse decision or order which such litigant does not accept, it is incumbent on him to make enquiries as to how and when to challenge such decision or order.[37]

44.But that said, the lack of any satisfactory reason for the delay is only one factor to be taken into account in the exercise of my discretion. Here, the delay was only 11 days, and I am not persuaded the delay caused any substantial prejudice to D. So, the primary consideration in the exercise of my discretion is to secure the just determination of the dispute between the parties. As seen below, having carefully considered the parties’ pleadings, affirmation/statement evidence and submissions, and the legal principles set out in this judgment, I am not persuaded the Appeal had merit, so I decline to grant leave to appeal out of time.

45.It is trite that an appeal from the master to judge in chambers is dealt with by an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time. The judge will give the weight it deserves to the previous decision of the master; but he is in no way bound by it.[38]

46.Mr Lok, counsel for D, informed the court D had no objection for P to rely on the P 2^nd Aff that was filed without leave. Thus, at the hearing of the Appeal, I granted leave for P to rely on the P 2^nd Aff.

IX.  DISCUSSION

47.Mr Lok’s submissions focused on P’s alleged loss and damage and the causal link between such alleged loss/damage and D’s acts/omissions. I agree with the relevant legal principles set out in paragraph 25 of Mr Lok’s in his written submissions:

(a)	Requirement of causal connection On causation in an action in tort, a defendant who is in breach of a duty in tort cannot be held responsible for loss suffered by a claimant unless the defendant’s conduct was a cause of that loss (indeed negligence without proof of damage is not actionable): (i) it must be determined whether the defendant’s conduct was a cause in fact of the claimant’s loss, (ii) if a causal link in a strictly objective sense is shown, it is necessary to consider whether the conduct can be seen as a cause in law, ie it is not enough that the conduct provided an opportunity for the harm to happen as it must also be, in some sense, an effective cause of the harm, and (iii) there is the question of proximity between the cause and the damage or, in other words, of the remoteness of the damage, ie assuming that the conduct was a cause, it must be sufficiently closely connected with the damage so as to justify the imposition of liability.[39] The claimant must lead evidence tending to establish the facts necessary to establish a breach of duty and any additional facts required to establish causation of loss. The evidence must be sufficient to show that on a balance of probabilities the most likely cause was the negligence of the defendant.[40] Ultimately, it is a question of whether the evidence allows a reasonable finding of causation, but it is a question of fact whether any particular kind of damage has been caused by a defendant’s negligence.[41] If the claimant fails to establish that the defendant caused the harm of which complaint is made, or some part of it, then the action will fail.[42] The courts are concerned, not just to identify all of the possible causes of a particular incident, but with the effective cause of the resulting damage in order to assign responsibility for that damage. It is worth bearing in mind that the “but for” test functions as an exclusionary test, ie its purpose is to exclude from consideration irrelevant causes. The fact that the defendant’s conduct is found to be a cause, applying the “but for” test, is not conclusive as to whether he should be held responsible in law since the function of the causal inquiry in law is to determine which causes have significance for the purpose of attributing legal responsibility. It is sometimes said that the law seeks the causa causans (effective factor) rather than the causa sine qua non (factor(s) without which damage could not have occurred).[43] On causation for breach of contract, there must be a causal connection between the defendant’s breach of contract and the claimant’s loss, and the claimant may recover damages for a loss only where the breach of contract was an “effective” or “dominant” cause of that loss. The answer as to whether the breach was the cause of the loss or merely the occasion for the loss must “in the end” depend on “the court’s commonsense”.[44] In light of the above, particulars must always be given in the pleadings showing in what respects the defendant was negligent, and the statement of claim ought to plead the facts upon which the supposed duty is founded, averments as to the precise breach of that duty of which the claimant complains, and particulars of the injury and damage sustained.[45]
(b)	Remoteness of damages In the majority of torts the claimant must show the defendant’s wrongdoing caused him actual damage. In these torts, and indeed in torts actionable per se if substantial damages are sought, the claimant must establish that (i) the defendant’s conduct did in fact result in the damage of which he complains, and (ii) the damage is not in law too remote a consequence of the defendant’s wrongdoing.[46] The function of a test of remoteness is to set an outer limit to the damage for which the defendant will be held responsible. The possible consequences of any human conduct are potentially endless. The law does not, however, impose indefinite liability. A line must be drawn to confine the responsibility of the defendant to those consequences of his wrongdoing which it is proper for him to shoulder. Thus, even when it is quite clear that the defendant’s wrong caused the damage, it may be said that the damage was too remote if it is not of the same type as would normally be anticipated in similar circumstances, or if it occurred in an unusual way.[47] Since all contractual liability is voluntarily undertaken, it is logical to found liability for damages upon the intention of the parties. The rule in Hadley v Baxendale is a prima facie assumption about what the parties may be taken to have intended, and is capable of rebuttal in cases in which a party will not reasonably have been regarded as assuming responsibility for such losses. The concept of assumption of responsibility provides a principled basis for distinguishing between losses which are or are not too remote. Whether a contract breaker has assumed responsibility for a particular type of loss is to be decided by viewing the nature/object of the contract against its commercial background, and the common expectation, objectively assessed, on the basis of which the parties are entering into their contract.[48] An objective test will be applied when asking the question whether responsibility should be held to have been assumed by the defendant to the claimant.[49]
(c)	Concurrent liability to contract and tort In the case of concurrent liability in contract and tort, the contractual test for remoteness of damage should be applied since the tortious liability normally arises because one party has assumed a responsibility towards another, and it would be anomalous if the party pursuing the remedy in tort is able to assert that the other party has assumed responsibility for a wider range of damage than he would be taken to have assumed under the contract.[50]

48.P’s alleged loss and damage were first pleaded in the SoC as follows:

“27. As a result of [D’s] breach of the Retainer, [P] was exploited by his relatives financially and he could not maintain himself and reimburse medical expenses from the recovered money of the settlement of the [PI Action].

28. By reason of the matters pleaded from paragraph (1)-(26) hereinabove, [P] has suffered loss and damage to be assessed.”

But as Mr Lok submitted, such averments were contradicted by the 2^nd FBP which referred to other loss and damages (see paragraphs 17 and 31(d) above) that did not include the loss and damage pleaded in the SoC set out above even though the 2^nd FBP was given pursuant to D’s request for further and better particulars of P’s plea of the loss and damages to be assessed in paragraph 28 of the SoC (see paragraph 31(d) above). Further, P’s witness statement did not provide any statement evidence to support how P was exploited by his relatives, and P’s List of Documents did not appear to disclose documents in relation to pecuniary loss and damages. Rather, P’s witness statement claimed P’s loss was his inability to seek a more favourable settlement from HA. P did not give any explanation for the different versions presented by him.

49.I also agree with Mr Lok that P’s loss as a result of having been exploited by his relatives was too remote. In my view, the settlement monies in P’s hands at the material time merely provided the opportunity for the alleged harm to happen, but viewed objectively, the effective cause of the alleged harm was the conduct of P’s relatives. The law does not impose indefinite liability, and the alleged loss in the SoC of being financially exploited by relatives was beyond the outer limit of the damage for which D would be held responsible. In such circumstances, P could not seek such loss and damages as a matter of law.

50.In respect of P’s pleas as to loss and damage in the 2^nd FBP as alluded to in paragraphs 17 and 31(d) above, P claimed for (a) accrued and future medical expenses for his psychiatric condition, (b) accrued/future loss of earnings for his estimated working life, (c) loss relating to family, and (d) legal and medical fees. There were no material facts pleaded in the SoC as to how such loss and damage were caused by D’s acts/omissions. But it must be obvious that P’s medical expenses (whether accrued or future expenses) were caused by his own psychiatric condition and schizophrenia, and that his psychiatric condition and various hospitalisations/medications in relation thereto would have disrupted his employment and income therefrom. In my view, there was no sufficient pleaded basis to support P’s claim for the loss averred in the 2^nd FBP. I further note P engaged D as his solicitors to claim for damages in respect of personal injuries caused by HA’s medical negligence, and D in such capacity could not have assumed responsibility for the loss and damage set out in the 2^nd FBP.

51.As Mr Lok reminded, P’s witness statement gave another version of P’s alleged loss and damage, ie D’s breach of the Retainer and D’s negligence resulted in P being unable to secure the just and proper compensation he would have been entitled in the PI Action. But such causation and loss were not pleaded in the SoC, and the fact such non-pleaded assertion was raised in P’s statement evidence did not mean it formed part of P’s pleaded cause of action in the present action. Indeed, such non-pleaded assertion was not referred to or verified in the P 1^st and 2^nd Affs. P also did not offer any explanation as to why such complaint against the settlement and settlement sum in the PI Action was raised 15 years later in 2016 when even on P’s case he ceased to be a MIP after October 2009 (see footnote 22 above).

52.In any event, as Mr Lok submitted, P’s claim for loss and damage were not particularised and unclear.

53.Particulars must be given of special damages.[51] In Lam Sik Ying, administrator for the estate of Lam Tim alias Stan Lam Tim, deceased v Lam Sik Shi & anor,[52] I have set out the relevant legal principles about pleading special damages:

“25. In Bodum AG v Renco Trading Limited, I have discussed the difference between special and general damages in terms of pleadings. The basic test of whether damage is general or special is whether particularity is necessary/useful to warn the defendant of the type of claim and evidence or the specific amounts of claim, which he will be confronted at trial.

26. Special damage is such loss that the law will not presume to be the consequence of the defendant’s act, but it depends in part, at least, on the special circumstances of the particular case.  Further, where the precise amount of a particular item of damage has become clear before the trial, either because it has already occurred and so become crystallised or because it can be measured with complete accuracy, this exact loss must be pleaded as special damage. Special damage must always be explicitly claimed on the pleading with all necessary particulars.  On a strict view, the plaintiff will not be allowed at trial to give evidence of any special damage which is not claimed explicitly in his pleadings.  But even if there is a greater degree of leniency under the modern approach, a claim for special damage will only be allowed to be proved if the existence of such claim is clear from the statement of claim. ……

27. But whether the damage be general or special, if the plaintiff is able to base his claim for damages upon a precise or perhaps estimated calculation, he must plead particulars of the facts which make such a calculation possible. Such particulars should provide a fair and sufficient indication of the case that was being brought and that the opposing party had to meet.”

54.Further, “where the plaintiff claims that he has suffered damage, ie injury, of a kind which is not the necessary and immediate consequence of the wrongful act, it is his duty to plead full particulars to show the nature and extent of the damages, ie the amount which he claims to be recoverable …… so as to fairly inform the defendant of the case he has to meet ……”[53]

55.In my view, the loss and damage P alleged he suffered were not of a kind which was the necessary and immediate consequence of the wrongful act, and yet:

(a)   SoC – There were no material facts and/or particulars as to how P’s relatives exploited him financially and what the loss and damage were.

(b)   1^st FBP – P claimed that since 2002 he exhibited abnormal behaviour and distributed a total sum of $130,000, but averred he had limited ability to recall exactly when, on how many occasions, exactly how much, exactly where and who was present at each occasion he distributed money to strangers standing near him on the streets. Likewise, P also claimed he did not know on how many occasions and how much money were withdrawn on each occasion from his bank account with The Bank East Asia, Ltd (the bank passbook of which he had lost) in 2003 upon oral requests by the 3^rd Wife, save that a total sum of $200,000-$300,000 were withdrawn from his bank account since 2003.

(c)   2^nd FBP – P did not give particulars/evidence of the basis of his substantial claims, eg from whom he received / would receive what medical treatment and thereby incurred / would incur what medical expenses, even though P should have invoices/receipts for the incurred medical expenses.

(d)   P’s witness statement – the loss and damage alleged therein were not pleaded at all in the SoC.

56.P claimed that any defect in his pleadings and witness statement could be cured by amendments in due course. However, no draft amendments were placed before the court at the hearing of the Appeal, and P did not explain how the aforesaid defects could be cured. In any event, P had had the opportunity to cure any defect in the SoC by the 1^st and 2^nd FBP, and in my view his pleadings are still defective as aforesaid.

57.Mr Lok also complained that even if P claimed to have suffered psychiatric injury as a result of D’s default, this amounted to personal injuries and P should have complied with Order 18 rule 12(1A) of the RHC to serve a medical report with the SoC, which P failed to do.[54] In my view, there is no need for me to deal with this further complaint. In any event, it was not clear from the first paragraph of the 2^nd FBP that P complained he suffered psychiatric injury as a result of D’s default or for other reason.

58.In relation to D’s assertion that P’s claim was frivolous or vexatious and/or an abuse of process of the court, the above discussions in relation to the lack of material facts / particulars for P’s alleged loss and damage showed P’s pleaded case was confusing and contradictory, and unsupported by evidence in various respects. There was no clear pleading as to causation, ie how the alleged loss and damage was caused by D’s default. The alleged loss and damage set out in P’s statement evidence was not pleaded in the SoC, 1^st FBP and 2^nd FBP, and even if P proved D’s default as referred to in paragraph 15(a)-(h) above, one cannot see how such default could have caused the loss and damage asserted in P’s witness statement (see paragraph 51 above). Further, the material facts pleaded in the SoC, 1^st FBP and P’s statement evidence also did not support the loss and damage alleged in the 2^nd FBP, which allegations were inconsistent with P’s plea in the SoC that his loss was due to financial exploitation by his relatives and also with P’s statement evidence that he was unable to secure a just and proper settlement of the PI Action due to D’s default.

59.P in his oral submissions at the hearing of the Appeal said that he was financially straitened, and he was “insane” and unable to take care of himself and his children. He said he agreed to marry the 3^rd Wife because he was unable to take care of himself, and after the marriage the 3^rd Wife requested him for money and took money from him. P claimed he still had not recovered from his psychiatric condition after years of medical treatment, and he still could not take care of himself. He did not know how to calculate his loss and damage or how to obtain evidence to support his claim for loss and damage. He said he used to be a construction worker, but now he was financially unable to support his family. Whilst I sympathise with P’s personal plight, I am unable to see how these matters would alter the discussion above and my conclusion in the paragraph below.

60.In all the circumstances, I agree with Mr Lok it was plain and obvious that P’s claim in the SoC failed to disclose any reasonable cause of action, and such claim was confusing, contradictory and unsupported by his witness statement and/or other evidence, which justified striking out on the other grounds. Master Ho was entirely correct to grant the Order, and the application for leave to appeal out of time ought to be dismissed.

X.  CONCLUSION

61.I therefore order that P’s application for leave to appeal out of time be dismissed. There is no reason why costs should not follow event. I grant a costs order nisi that P should pay D costs of and occasioned by such application (including all costs reserved if any) to be taxed if not agreed.

62.Should D require translation of this Judgment into punti language, he can contact my clerk to arrange an appointment for a court interpreter to verbally translate this Judgment to him at the High Court Building at a mutually convenient time.

The plaintiff, acting in person and present

Mr Michael Lok, instructed by Howse Williams, for the defendant