Cheng Wan Kaai v. Hospital Authority

HCMP 1303/2022 and HCMP 1312/2022

(Heard Together)

[2023] HKCFI 1698

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1303 and 1312 OF 2022

____________________

____________________

(Heard Together)

_______________

J U D G M E N T

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1.This is the substantive hearing of the Originating Summonses (“OS”) taken out by the plaintiff (“Ms Cheng”) against the defendant (“the HA”) in these two cases. In HCMP 1303/2022, the claim nature as put down by Ms Cheng on the OS is “Profession”. In HCMP 1312/2022, the claim nature as stated by Ms Cheng on the OS is “Defamation”. For ease of reference, the OS in HCMP 1303/2022 and in HCMP 1312/2022 are referred as “PS” and “DS” respectively in the paragraphs below.

2.By the PS, Ms Cheng seeks the determination of the Court on the following question:

“Chung Kit Keung was employed by [the HA] without professional licence. HKD 10 million would be claimed in this case”

3.By the DS, Ms Cheng seeks the determination of the Court on the following question:

“assessment by Chung Kit Keung with no professional license[1] under the employment of [the HA]. HKD 30 million would be claimed in this case.”

4.The complaints made by Ms Cheng in both cases are against Dr Chung Kit Keung (“Dr Chung”), the Senior Medical Officer in Kwai Chung Hospitsal (“KCH”), who was involved in the treatment of Ms Cheng under the HA’s employment at the material times.

5.In this hearing, Ms Cheng is acting in person.  Mr Richard Man Ka Lok of counsel is representing the HA.

6.These two cases are heard together at the same time.  At the beginning of this hearing, with the agreement from the parties, I direct that the evidence filed in one case be admissible as evidence in the other case.  Further, with no objection from the HA, I also admit a copy of the letter dated 11 Mach 2015 concerning Ms Cheng signed by Dr Chung (“the Letter”) into the evidence.

7.Having considered the evidence and the submissions, I am of the view that both Ms Cheng’s claim by PS and her claim by DS are bound to fail and must be dismissed.

Factual background

8.The factual background has been helpfully summarized by Mr Man at [7] of his written submissions dated 19 June 2023.  I gratefully adopt the summary prepared by counsel with some modifications.  The modified summary is as follows:

Date	Case	Event
27 February 2015		Ms Cheng first known to mental health services in Hong Kong; Dr Chung appointed as Ms Cheng’s doctor at West Kowloon Psychiatric Centre (“WKPC”)
11 March 2015		The Letter concerning Ms Cheng signed by Dr Chung
11 March 2015		Consent form signed by Ms Cheng (“Consent Form”), in which Ms Cheng has given permission to KCH to release her medical information and report to HKUST
25 March 2015		Case Manager Round conducted by Dr Chung
6-19 May 2015		Ms Cheng’s voluntary admission to KCH
13 May 2015		Team round chaired by Dr William Lo Tak Lam (“Dr William Lo”)
17 November 2015		Case Manager Round conducted by Dr Chung
5 April 2016		Case Manager Round conducted by Dr Chung
27 December 2017		Case Manager Round conducted by Dr Clara Siu (“Dr Siu”)
29 May 2018		Ms Cheng last seen by Dr Chung
3 March 2022		Ms Cheng started consulting Dr Ricci Chang (“Dr Chang”)
23 August 2022		Ms Cheng’s last appointment with WKPC
9 September 2022		1st Letter issued by Dr Ricci Chang
9 January 2023		2nd Letter issued by Dr Chang
9 September 2022	PS	OS filed
14 September 2022	DS	OS filed
16 September 2022	PS	Ms Cheng’s 1st Affirmation
22 September 2022	DS	Ms Cheng’s 1st Affirmation
20 October 2022	PS	1st Affirmation of Dr Lo Wai Fan Alison (“Dr Alison Lo”) filed
20 October 2022	DS	Dr Alison Lo’s 1st Affirmation filed
8 November 2022	DS	Ms Cheng’s 2nd Affirmation filed
30 November 2022	PS	Ms Cheng’s 2nd Affirmation filed
13 February 2023	Both PS and DS	First hearing in Chambers before Mr. Recorder William Wong SC
16 February 2023	PS	Ms Cheng’s 3rd Affirmation filed
17 February 2023	DS	Ms Cheng’s 3rd Affirmation filed
20 March 2023	PS	Dr Alison Lo’s 2nd Affirmation filed
20 March 2023	DS	Dr Alison Lo’s 2nd Affirmation filed
23 March 2023	PS	Ms Cheng’s 4th Affirmation filed
23 March 2023	DS	Ms Cheng’s 4th Affirmation filed

Dr Alison Lo’s evidence

9.At the beginning of this hearing, Ms Cheng objects to the evidence given by Dr Alison Lo by affirmations in these two cases.  Ms Cheng submits that Dr Alison Lo has never met her, and Dr Alison Lo has no personal knowledge of the matters in these cases.  According to Ms Cheng, Dr Alison Lo’s evidence should be “discredited”.  Ms Cheng is relying upon s.12 of the Evidence Ordinance (“EO”) in support of her submission.

10.With respect, as submitted by Mr Man, Ms Cheng cannot derive any assistance from s.12 of EO. The subject matter in that section is evidence from a hostile witness. Obviously, that section is entirely irrelevant and cannot support Ms Cheng’s submission.

11.Dr Alison Lo is the Chief of Service and Consultant Psychiatrist of KCH.  In each of her affirmations, Dr Alison Lo has in fact said that in respect of matters outside her personal knowledge, the matters are learned by her during the course of handling these proceedings or gleaned from the relevant files and hospital records to which she has access, and the matters are true to the best of her information and belief.  In my judgment, I have no reason to exclude Dr Alison Lo’s evidence merely because she has not met Ms Cheng.

PS

12.In respect of the professional qualifications and experience of Dr Chung, the HA has adduced evidence to show the following:

(1)  Dr Chung was at all material times a registered medical practitioner.

(2)  Dr Chung graduated from The University of Hong Kong in 1983 with a Bachelor of Medicine and Bachelor of Surgery (MBBS) Degree.

(3)  He passed Part I Examination of the Membership Examination of the Royal College of Psychiatrists, United Kingdom in 1989.

(4)  He passed Part II examination of the Hong Kong College of Psychiatrists in 1996, and became a senior trainee in 1997.

(5)  Dr Chung started working in the area of psychiatry in public hospitals in Hong Kong in 1986.

(6)  On 1 April 1993, Dr Chung was appointed as a Medical Officer at KCH.  He was then promoted to Senior Medical Officer (equivalent to Associate Consultant nowadays) on 2 January 1999.  Dr Chung retired in May 2018.

13.What has been stated in the aforesaid paragraph is not in dispute or indisputable.  Ms Cheng’s focus is that Dr Chung’s name has never been included in the Specialist Register of Psychiatrists.  This fact is not disputed by the HA.  However, as submitted by Mr Man, notwithstanding this fact, it is lawful for Dr Chung to provide psychiatric treatment to Ms Cheng at the material times.

14.Medical Registration Ordinance (“MRO”), ss.16 and 20A, provide that every registered medical practitioner holding a valid practicing certificate shall be entitled to practice medicine, surgery and midwifery.  As said in the above, Dr Chung was at all material times a registered medical practitioner with a valid practicing certificate.  As a matter of law, Dr Chung was entitled to practice any branch of medicine, including psychiatry.  There is no provision in the MRO or in any other statute prohibiting a doctor whose name is not in a specialist register from practising in that branch of medicine.

15.Accordingly, it is wrong to say that Dr Chung was employed by HA without professional licence. 

16.Ms Cheng submits that Dr Chung was prohibited from practicing psychiatry by s.28 of the MRO, which is as follows:

“(1) Any person who —

(a) wilfully or falsely pretends—

(i) to be qualified to practise medicine or surgery; or

(ii) to be registered; or

(iii) that his name is included in the Specialist Register; or

(b) wilfully or falsely takes or uses any name, title, addition or description implying that—

(i) he is qualified to practise medicine or surgery; or

(ii) he is registered; or

(iii) his name is included in the Specialist Register; or

……

commits an offence and is liable on conviction to a fine at level 6 and to imprisonment for 3 years.

……

(4) For the purposes of this section a person who fraudulently procures himself to be registered by making or producing or causing to be made or produced, any false or fraudulent representation or declaration, either oral or in writing, shall be deemed not to have been so registered.” (Ms Cheng’s emphasis)

17.With respect, Ms Cheng has misconstrued the statute.  S.28 of MRO does not prohibit a registered medical practitioner holding a valid practicing certificate from practicing a branch of medicine while the name of that doctor is not in the specialist register of that branch.  That section only prohibits a person from willfully or falsely pretending that his name is included in a specialist register, or making false representation or declaration in the process of applying for registration.  There is no evidence showing that Dr Chung has ever done the acts prohibited by s.28 of MRO.

18.Although Dr Chung was not a specialist in psychiatry, according to Dr Alison Lo, while Ms Cheng was receiving treatment from KCH, in fact Ms Cheng was being taken care of by a team, in which a specialist in psychiatry, Dr William Lo, was the supervisor. In Dr Alison Lo’s 1^st Affirmation filed in response to the PS, Dr Alison Lo said:

“15. In accordance with the usual practice at KCH, the doctors (including Dr Chung) were working as a team. Generally speaking, for cases under [Early Intervention team], Case Manager Round is conducted regularly to review the case management. For in-patient cases, cases would be discussed at a weekly team round usually chaired by the Team Head or his delegate, usually a Specialist in Psychiatry, when the Team Head is not available. In addition, there would be regular firm[2] meetings attended by doctors, ward nurses, and allied health professionals (including clinical psychologists, occupational therapists, medical social workers and case managers) where cases would be reviewed and discussed.

16. During [Ms Cheng]’s voluntary admission to KCH in May 2015, Dr Chung was directly supervised by [Dr William Lo], in accordance with the Clinical Team’s supervision structure that a Resident would be supervised by an Associate Consultant, and an Associate Consultant or a Senior Medical Officer would be supervised by a Consultant. Dr William Lo was at the material times and still is a Specialist in Psychiatry. He was also at the material times a Consultant Psychiatrist, the [Early Psychosis] Programme Team Head, and the Hospital Chief Executive of KCH.

17. According to the hospital records, [Ms Cheng]’s case was discussed at a team round chaired by Dr William Lo on 13 May 2015. I have checked with Dr William Lo and verily believe that Dr Chung’s diagnosis and management of [Ms Cheng] was reviewed and endorsed at the team round.

18. As for [Ms Cheng]’s out-patient attendances, according to the hospital records, during the period from 27 February 2015 to 2 February 2018, four Case Manager Rounds were conducted on 25 March 2015, 17 November 2015, 5 April 2016 and 27 December 2017. The Case Manager Round on 25 March 2015, 17 November 2015 and 5 April 2016 were conducted by Dr Chung, whilst the Case Manager Round on 27 December 2017 was conducted by Dr. SIU Man Wah Clara (“Dr Siu”), a Specialist in Psychiatry.

19. Dr Chung’s diagnosis and management of [Ms Cheng] was routinely reviewed and endorsed by senior doctors including Specialists in Psychiatry.”

19.Ms Cheng is complaining that since Dr Chung was not a specialist in psychiatry, Dr Chung had misdiagnosed Ms Cheng and said Ms Cheng was suffering from psychosis.  In fact, at the material times, Ms Cheng was only having anxiety disorders, and was not suffering from psychosis.  Ms Cheng relies upon the two letters issued by Dr Chang:

(1)  In the 1^st letter dated 9 September 2022, Dr Chang said:

“I saw [Ms Cheng] on 3 March 2022.

[Ms Cheng] had a previous diagnosis of Psychosis. Based on my assessment, she has had significant symptoms of Anxiety Disorders.

……”

(2)  In the 2^nd letter dated 9 January 2023, Dr Chang said:

“I saw [Ms Cheng] on 03 March 2022 ……

She was diagnosed with Anxiety Disorders, with an onset in her early teenage years. I found no symptoms of psychosis based on my continuous assessments.

……”

20.With respect, in my view, Ms Cheng’s complaint lacks factual basis.  In the Letter, the diagnosis stated by Dr Chung is “Acute Schizophrenia in Remission”. Further, in the Discharge Summary of KCH[3] produced by Ms Cheng[4], it is recorded that in 2015, Ms Cheng was diagnosed by the medical team in KCH as suffering from schizophrenia[5].  The diagnosis was “Schizophrenia, unspecified”.  There is no evidence showing that KCH has ever said that Ms Cheng was suffering from psychosis.

21.Further, as submitted by Mr Man, Ms Cheng only began to consult Dr Chang in March 2022, nearly 4 years after Dr Chung last saw her.  Ms Cheng’s condition in 2022 cannot helpfully shed light on her condition years ago, ie from 2015 to 2018. In any event, Dr Chang has not said that he has examined the medical records of KCH and find that something done by KCH is incorrect or wrong.

22.On any view, there is no basis upon which Ms Cheng may say that the HA is liable to pay damages to her.  Without prejudice to this conclusion, just for the sake of discussion, even if liability can be established, there is also no basis in support of the quantum of HKD 10 million claimed by Ms Cheng.

23.Ms Cheng’s claim by PS is devoid of any merit and must be dismissed.

DS

24.Mr Man has helpfully summarized the relevant principles in his written submissions, which are as follows:

(1)  Defamation is the publication of matter about the plaintiff that “tends to discredit, or lower the plaintiff in the estimation of others, or causes him to be shunned or avoided, or exposes him to hatred contempt or ridicule”.[6]

(2)  The plaintiff bears the burden to prove all the elements and for that purpose, state all the facts necessary to formulate a complete cause of action. The plaintiff must state, in respect of each alleged publication[7]:

(a)  publication by the defendant;

(b)  the words published;

(c)  the words were published of the plaintiff; and

(d)  for slander, any material facts making the words actionable per se, or alternatively, the words have caused special damage.

(3)  The plaintiff must give particulars in respect of each publication relied on as a separate cause of action, that the words were published by the defendant on a specific occasion to a named person or persons other than the plaintiff.[8]

(4)  The actual words are material facts that must be ascertained and stated.  A mere description of their substance, purport or effect is not enough but the precise words must be set out.[9] For slander, it is important to state the name of the persons to whom the words were spoken, when they were spoken and in what circumstances.[10]

25.Ms Cheng has not identified the material facts in support her claim against the HA based upon defamation.

26.Mr Man has identified the following matters mentioned by Ms Cheng in her affirmations filed in relation to DS, which may be relevant to her defamation case:

(1)  Alleged communications with Ms Cheng’s family

Ms Cheng’s 2^nd Affirmation:

“15. The Plaintiff is alleging defamatory slander of title and other malicious falsehood, which are consistently communicated by [HA] to the Plaintiff’s family, via the Plaintiff’s previous home telephone number ……, without the Plaintiff’s consent. Chung Kit Keung’s assessment and diagnosis were deemed defamatory to the Plaintiff’s personal standing within the family. The Plaintiff moved out of her parent’s home on 20 May 2022.”

(2)  The Letter

(a)  Ms Cheng’s 2^nd Affirmation:

“16. .….. the Plaintiff is alleging defamatory libel, which were communicated in a letter by [Dr Chung] … to the Plaintiff’s undergraduate University, the Hong Kong University of Science and Technology in Feb 2015.

17. Chung Kit Keung’s assessment and diagnosis were deemed defamatory to the Plaintiff’s personal standing within the school.

18. Due to excessive study stress, the Hong Kong University of Science and Technology advised the Plaintiff to take a semester break after the Plaintiff failed a Finance Course in the Academic Year 2013-2014 and failed two courses in the Exchange to France in the Academic Year 2014-2015.

19. At the request of the Hong Kong University of Science and Technology, the exemption of the abovementioned Finance course in the Academic Year 2014-2015 might require the Psychiatrist’s advice. So, the Plaintiff agreed with the Hong Kong University of Science and Technology to ask for a Psychiatrist’s advice from the Hospital Authority on future study.

20. In the consultation with Chung Kit Keung, the Plaintiff communicated the purpose of the consultation to Chung Kit Keung.

21. After reading the letter written by Chung Kit Keung dated Feb 2015, though the Plaintiff found the defamatory libel alleged by Chung Kit Keung malicious and not helpful, the Plaintiff already communicated the abovementioned letter to the Hong Kong University of Science and Technology in advance.

22. Even after the Plaintiff explicitly expressed her reluctance to display the defamatory libel of “diagnosis” in the letter, Chung Kit Keung refused to remove the defamatory libel of “diagnosis” from the letter.

23. Nevertheless, the Plaintiff felt obliged to present the letter to the Hong Kong University of Science and Technology when the Hong Kong University of Science and Technology had prior knowledge of the letter.”

(b)  Ms Cheng’s 4^th Affirmation, at p.3:

“The Plaintiff was a full-time student at the time and had to get the medical letter to resume study after failing three academic courses. A medical letter to resume study was the only reason the Plaintiff made the consent to the disclosure. Yet, Chung Kit Keung wrote the diagnosis into the letter against the will of the Plaintiff. The Plaintiff was defamed since the intended recipient of the letter was the Plaintiff’s Business School. Under the employment of Hospital Authority, Chung Kit Keung accused the Plaintiff of having psychosis using the capacity of a Psychiatrist without being on the Specialist Registrar[11].”

(c)  There is no dispute that the letter relied upon by Ms Cheng in support of her defamation claim is the Letter dated 11 March 2015 signed by Dr Chung.

(3)  Alleged defamation by Dr Chung:

Ms Cheng’s 3^rd Affirmation:

“Under the employment of Hospital Authority, Chung Kit Keung accused the Plaintiff of having psychosis using the capacity of a Psychiatrist without being on the Specialist Registrar. The act of merely making written assessment of the Plaintiff using the capacity of a Psychiatrist without being on the Specialist Registrar[12] is deemed a defamation.”

27.With respect, there is no merit in Ms Cheng’s claim.

28.Regarding the alleged telephone communications with Ms Cheng’s family:

(1)  This allegation is wholly unparticularised.  It is not known who from the HA made phone calls to which member(s) in Ms Cheng’s family, telling what to that family member or those family members.  It is also not known when these alleged telephone calls were made.  The Court cannot allow a claim based upon a wholly-unparticularised allegation.

(2)  Since these alleged phone calls were made to Ms Cheng’s family, Ms Cheng herself would not have personal knowledge of the contents of these telephone conversations.  Ms Cheng has not stated the source(s) of information, from which she learned the contents of these telephone conversations.  With the source(s) of information being completely unknown, the Court cannot attach any weight to Ms Cheng’s evidence.

(3)  Ms Cheng’s allegation is denied by the HA.  The HA’s case is that all the telephone conversations between the HA’s staff and Ms Cheng’s family member(s) were about confirming or reminding the upcoming follow-up medical appointments, without communicating Ms Cheng’s medical condition to her family.[13]

(4)  There is no clear and reliable evidence before me showing that any defamatory words against Ms Cheng has been said by the HA’s staff to Ms Cheng’s family in any telephone conversation.

(5)  Further, in respect of any alleged telephone communication took place at a time more than 6 years before the commencement of HCMP 1312/2022 by Ms Cheng[14], a defamation claim based upon the alleged telephone communication would have been time-barred.

(6)  I also accept Mr Man’s submission that, despite using the label of “malicious falsehood”, Ms Cheng has failed to identify any fact capable of giving rise to “malice” on the part of the HA, ie that the HA was acting out of an indirect motive other than a sense of duty.[15]

(7)  For these reason, the defamation claim based upon the alleged telephone communications with Ms Cheng’s family must be dismissed.

29.Regarding the Letter:

(1)  The contents of the Letter are as follows:

“Medical Report

To whom it may concern

……

[Ms Cheng] was attended to [KCH] on 11 March 2015.

The diagnosis was: Acute Schizophrenia in Remission

……

Medical notes:

She is mentally FIT to resume BBA study. However, exemption to take the Finance Course is supported on medical grounds because it poses on her significant stress which is detrimental to her mental stability.

……”

(2)  With respect to Ms Cheng, the word “diagnosis” itself in the Letter would not have the effect of defaming Ms Cheng.

(3)  It was Ms Cheng herself, with full knowledge of the contents of the Letter (including realizing the alleged defamatory meaning of the Letter), submitted the same to HKUST.  In the circumstances, the HA cannot be regarded as being involved in the publication of that letter to HKUST.

(4)  For the sake of discussion, even if the HA can be regarded as having published this letter to HKUST, the publication in fact has been agreed to by Ms Cheng, as evidenced by the Consent Form signed by Ms Cheng on 11 March 2015.  In the circumstances, Ms Cheng cannot have any legitimate complaint against that publication.

(5)  In any event, this alleged defamation incident occurred in March 2015.  When Ms Cheng commenced HCMP 1312/2022 on 14 September 2022, any claim based upon this incident has already been time-barred.

(6)  For these reasons, the defamation claim based upon this letter must be dismissed.

30.Regarding the alleged defamation by Dr Chung:

(1)  Based upon what has been said by Ms Cheng in her 3^rd Affirmation filed in support of the DS, Dr Chung only told Ms Cheng, not anyone else, that Ms Cheng was having psychosis.  Even if the words said by Dr Chung are defamatory, there has been no publication of those words.

(2)  This claim must also fail.

31.Without prejudice to the above, for the sake of discussion, even if Ms Cheng can make out her claim based upon defamation, there is no basis upon which she may claim damages in the sum of HKD 30 million.

32.For the reasons above, Ms Cheng’s claim by the DS is bound to fail.

Disposition

33.For the reasons above, both the PS and the DS must be dismissed.

34.I have heard submissions on costs.  The general rule is costs following the event.  However, Ms Cheng submits that in the event that she is unsuccessfully in these two cases, no adverse costs order should be made against her, because her financial situation is not good.  With respect, impecuniosity is not a ground to depart from the principle that costs should follow the event.[16] I order that costs of these two cases (including costs reserved, if any) be paid by Ms Cheng to the HA, to be taxed if not agreed. 

35.I thank counsel for the assistance provided to the court.