Kwok Carman v. Cheng Sai Wah

DCPI 2381/2022

[2025] HKDC 1719

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2381 OF 2022

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BETWEEN

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REASONS FOR DECISION

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THE APPEAL

1.By a Notice of Appeal filed on 19 June 2025, the Plaintiff (“P”)  appeals against the decision of Master J Chow dated 6 June 2025 (“Master’s Decision”)  in dismissing P’s summons filed on 10 February 2025 (“Summons”)  for leave to adduce medical expert evidence in psychiatry.

2.This Court read the written submissions and heard the arguments in court of P’s counsel Mr Tim Kwok and defence counsel Ms Flora Lam.

3.At the end of the hearing, I allowed the appeal.  Here are the reasons.

THE ACCIDENT

4.The personal injuries claim herein arose out of a traffic accident that occurred on 1 January 2020 at around 16:19 hrs.  The Defendant (“D”)  was driving a taxi out of the driveway exit of World Trade Centre, Causeway Bay, turning left onto Gloucester Road when P, a pedestrian, was walking out of the pavement and crossed in front of the taxi.

5.P’s case is that she had walked out of the pavement onto the road, crossing from right to left in front of D’s taxi when all of a sudden the taxi started to move forward.  It failed to stop and the left front of the taxi rammed into her causing right ankle injury and also pain in her hip and left thigh (“Accident”).

6.P was shortly after the Accident sent by an ambulance to the Accident & Emergency Department (“A&E”)  of Ruttonjee & Tang Shiu Kin Hospitals.  She was later transferred and admitted to the Department of Orthopaedics & Traumatology (“O&T”)  of Pamela Youde Nethersole Eastern Hospital (“PYNEH”)  for further investigation and treatment.

7.Contemporaneous medical record shows “...sprained R ankle while trying to avoid hitting by taxi...pop sound heard...R ankle swelling + bruise...limited ankle movement due to pain”[1] on the day of admission.

8.D’s case is completely different, as set out in his witness statement filed on 24 March 2023[2]: He was driving a taxi out of the exit slowly when P suddenly ran across in front.  D was able to brake stop the taxi.  P was furious and scolded D that he almost hit her, at the same time banging on the bonnet with her left hand and kicking the left front of the taxi.  P did not fall but walked around the front of the taxi for a few minutes, as shown in a video footage capturing the Accident.

Psychiatric/Psychological Treatment History

9.Medical evidence reveals that P had previous attendance in the public psychiatric services in July to September 2013 in Kwai Chung Hospital.  She presented with low mood with negative cognition, etc, was diagnosed with moderate depressive episode and prescribed with antidepressant medication[3]. She defaulted follow up thereafter.

10.Other than the brief treatment history back in 2013, there is no evidence that P had any pre-existing psychiatric condition or symptoms prior to the Accident.

11.Immediately after the Accident, P was referred to and attended clinical psychology services with Mr Isaac Kwok, clinical psychologist (“CP Kwok”)  during the period from 2 January 2020 to 24 February 2021[4]. On 2 January 2020, P reported experiencing intense fear when she witnessed a taxi approaching, and had nightmares and flashbacks, as well as avoidance behaviours during the period of treatment.  CP Kwok assessed and recorded P to have depression (moderate); anxiety (extremely severe); stress (severe), and was impressed to have features of Bipolar Affective Disorder (“BAD”)  and Post Traumatic Stress Disorder (“PTSD”).  P was scheduled for follow up on 1 March 2021, but had defaulted treatment thereafter.

12.P was also referred for and attended psychiatric treatment at PYNEH during the period from July 2020 to January 2021.  She reported flashback, hypervigilance and avoidance behaviour towards the Accident and was diagnosed with BAD[5]. She was scheduled for psychiatric follow up on 1 February 2021, but had defaulted treatment thereafter.

13.P did not attend further clinical psychology services nor psychiatric treatment after February 2021.  A year after that she commenced these proceedings by issuing the writ and Statement of Claim on 20 July 2022.  After the action had proceeded for some 2.5 years, she issued the Summons on 10 February 2025.

14.Immediately after issue of the Summons, P sought treatment again on 11 February 2025 at the A&E of PYNEH; she was categorised in the triage record as an “urgent case”[6]. Arrangements were made for P to resume psychiatric treatment on 13 March 2025 in the out-patient clinic[7] and clinical psychology services on 7 July 2025 in PYNEH.

The Legal Principles

15.The nature of an appeal against a Master’s decision to a Judge in chambers under O 58 r 1 of the Rules of the District Court is by way of re-hearing.  The Judge may give weight to the previous decision, but is in no way bound by it or fettered by the previous exercise of the Master’s discretion.  (Hong Kong Civil Procedure 2025, Vol 1 Commentary §58/1/2)

16.The legal principles regarding adducing expert evidence are trite in that it must be shown to be relevant, necessary and of probative value.  As stated in the decision of Bharwaney J in Fung Chun Man v Hospital Authority and Anor (HCPI 1113/2006; 24 June 2011), it must be reasonably required to enable the court to resolve the issues in dispute, and proportionate (§15).

17.Granting or refusing leave is an exercise of discretion under the court’s case management power on a case-specific basis, in furtherance of the underlying objectives under the CJR and along with ensuring fairness to the parties and securing a just resolution of the dispute. (§§9, 10)

18.His Lordship goes on to state (§16):-

“16.…even if a prima facie case is made out for the admission of expert evidence, in every case, the court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant in cases where a late application is made for expert evidence to be adduced. These matters have to be considered and weighed in the light of and against the underlying objectives of the CJR: to ensure cost effectiveness and economy, expedition, proportionality, and fairness between the parties. Ultimately, the court strives to do justice between the parties and, in cases where the court permits the parties to call expert evidence, the court strives to ensure a level playing field with fair access to proper experts for all parties.”

[emphasis added]

19.Regarding obtaining medical expert evidence from a psychiatrist/psychologist (§§23, 24):-

“23. There appears to be a misconception that the courts will not readily grant leave for evidence from a psychiatrist or a psychologist to be adduced. The law of negligence does not provide a remedy for distress which does not amount to a recognised psychiatric illness[9], unless the distress, anxiety or fear is accompanied by a physical injury.[10] The courts award damages where a party has suffered a recognisable psychiatric illness over and above emotional distress and disquiet. The court will almost invariably require expert evidence to determine whether or not this is the case[11]. Even where it is not disputed that the plaintiff suffers from psychiatric illness, there may be a dispute as to causation: was the psychiatric illness caused or contributed to by the tort complained of. A trial judge who has to determine this issue of causation may need assistance from an expert in this field.

24. …Prolonged sadness, excessive anxiety, unusual irritability and temper tantrums are all indicia of possible psychiatric illness.  These are often recognised by treating doctors and nurses and the patient referred to a psychiatric unit, whether in-patient or out-patient, for assessment and treatment.  Even if the hospital records or treating doctors and nurses make no mention of a plaintiff’s psychiatric illness or possible psychiatric illness, orthopaedic or neurological experts examining a plaintiff in order to prepare expert medical reports on his physical condition will often recognise the presence of a psychological or psychiatric component and recommend that reports be obtained from relevant experts in that field.  Each case must depend on its own facts and a mere recommendation without supporting reasons by an expert from another field may be insufficient, but where the need for psychiatric or psychological evidence is clear and obvious, there can hardly be any realistic challenge to a request for relevant expert examination and reporting.”

[emphasis added]

P’S POSITION

20.P’s case is premised on the immediate manifestation of PTSD and BAD and other psychiatric/psychological symptoms on the day following the Accident, for which she had attended clinical psychology services and psychiatric treatment for a year until February 2021.

21.There is no evidence of pre-existing conditions of these diagnosed psychiatric illnesses before the Accident, P’s previous conditions back in 2013 being moderate depressive episode in remission and adjustment disorder.

22.P submits that the timing of the immediate manifestation of mental conditions including features of PTSD and BAD establishes a prima facie case that they were caused by or related to the Accident.

23.As to the default of P in attending follow up or seeking psychiatric treatment during the 4-year period from March 2021 to February 2025, P’s reasons are given in her Affirmation filed on 10 February 2025 in that it was mainly due to the Covid-19 pandemic, and for emotional and personal reasons[8].

24.As to poor drugs compliance, P has given reasons (as recorded in contemporaneous medical records[9])  for fear of affecting estrogen and the need for focus at the time on the work of company’s audit.

25.P’s counsel argues that whether the court would accept P’s reasons for the drugs non-compliance and default in treatment would be matters for the trial judge.  These matters should not now be held against P to shut her off at the interlocutory stage from adducing expert evidence in psychiatry.  Such medical expert evidence is clearly relevant to the issues of causation and quantum, and of probative value in this case.

26.P has a substantive right to put forward psychiatric expert evidence to prove that her mental illnesses were caused by and arose out of the Accident, causing her loss and damage.

27.The question of causation is complex in P’s case given the pre-accident psychiatric treatment history back in 2013, the nil treatment for 4 years since 2021 after the Accident, and the alleged continuation of mental symptoms and resumption of psychiatric treatment in 2025.  Expert evidence and opinions from an expert in psychiatry would be necessary to assist the court on questions in the psychiatric aspect of the nature, cause, severity, impact on P, prognosis, sick leave required and further treatment, if any, and duration and cost.

28.P argues that the medical records and reports from CP Kwok and the treating psychiatrist cannot assist the court on these issues.  They are not meant for dealing with the forensic aspects of P’s mental conditions.  The main duties of the treating doctors and healthcare personnel were to take from the patients the reported medical symptoms and problems, to make clinical findings and diagnoses, and to deliver treatment.

29.Consideration of proportionality of the cost compared to the claim would not justify denying P’s substantive right of adducing expert evidence in psychiatry in this case.  P’s claims as pleaded, considering the claim for PSLA and pre-trial loss of earnings alone in the total sum of about $1.5 million, would hardly render the cost of obtaining psychiatric expert evidence disproportionate.

30.As to delay, much criticism was made by D that P had all along not made any request for adducing medical expert evidence in psychology or psychiatry until 5 May 2023 when her former solicitors in their letter first suggested engagement of an expert in psychology, and much later a written request on 15 March 2024 to appoint an expert in psychiatry.  No further request was made until P’s current solicitors (who took over conduct in September 2024)  first put it in the Questionnaire dated 21 October 2024, and subsequently the Summons issued on 10 February 2025.

31.Mr Kwok relies on the decision of HHJ Andrew Li (as he then was)  in Wong Yin Chau v Hong Kong Academy of Medicine and Ors (DCPI 1133/2016; 27 June 2018): In that case the plaintiff’s psychological/psychiatric conditions had manifested after the accident in November 2013, but she did not issue the summons for psychiatric expert evidence until 18 January 2018, long after the action had commenced since June 2016.  The defendant in that case submitted that there was a long delay (of 5 years)  since the manifestation of symptoms until the summons was issued.

32.The court’s ruling in allowing the plaintiff’s appeal for leave to adduce expert evidence in psychiatry in Wong Yin Chau (supra) is summarised as follows:-

(1)  It is important to note that psychological/psychiatric conditions were pleaded in the Revised Statement of Damages back in March 2017 [§68];

(2)  One of the orthopaedic experts recommended examination by a psychiatrist [§69];

(3)  Causation is a matter of opinion to be commented on by expert psychiatrists, and for the court to decide with the assistance of their evidence [§71];

(4)  Even though the government records are helpful, they do not serve the functions of an expert report which would assist the court to understand the plaintiff’s condition and causation “in a more in-depth level” [§72];

(5)  The question of whether there is medical evidence to prove the worsening of depression due to the accident should be left to expert psychiatrists [§73];

(6)  On the issue of delay from the presentation of symptoms in 2013 to the application in January 2018, the plaintiff should not be punished due to incompetence or inefficiency, if any, of her assigned lawyers.  In any event, the treating psychiatrist’s report only became available in October 2017 (3 months before the application)  [§74];

(7)  Ultimately, the court strives to do justice between the parties to secure the just resolution of the dispute in accordance with their substantive rights, quoting DHCJ Ng (as she was)  in Bai Siba Kumar v Nishimatsu Construction Company Limited (HCPI 883/2012; 8 October 2013).  It would be unfair to deprive the plaintiff the opportunity to adduce psychiatric evidence to support this aspect of her claim [§70].

33.Mr Kwok explains the chronology of events and exchange between the solicitors in the present case and concludes that the real delay/inaction of P in issuing the Summons was about 17 months after her solicitors had raised the issue of adducing expert evidence in psychology or psychiatry.  He argues that the delay in this case, which was partly contributed to by D’s continual objection, is much less blameworthy than the 5-year delay considered by the court in Wong Yin Chau (supra).

34.P submits further that in the present case, filing of Revised Statement of Damages has yet been done.  Allowing adducing of psychiatric expert evidence is not unduly late and will not impact on any milestone dates.  No prejudice on D is established.

D’S OBJECTION

35.D’s grounds of opposition are as follows:-

(1)  Psychiatric expert evidence is not reasonably required, nor would it be helpful to the court in deciding the issues on quantum;

(2)  The available medical evidence from the treating doctors is sufficient for the court to determine the issues on quantum; and

(3)  Granting leave at such a late stage is contrary to the underlying objectives and prejudicial D.

36.D’s arguments are premised mainly on the fact that other than attending clinical psychology services and psychiatric treatment in the initial year after the Accident, P had defaulted treatment for 4 years since early 2021 during which period her mental conditions must have been alleviated and stable.  It should therefore reasonably be inferred that she did not suffer from any serious or recognised psychiatric illness after 2021 that would found a claim in the personal injuries context.  The current psychiatric conditions of P, if any, could not have been caused by the Accident.

37.D argues that the contemporaneous medical notes and records are sufficient for the trial judge to decide on the issues on both liability and quantum, namely whether P had suffered from any psychiatric injury, and if so, causative link if any with the Accident, the extent of such injury, reasonableness of past treatment, prognosis and necessity for future treatment.

38.In gist, it is D’s case that the trial judge will be in a position to consider and make findings on the above questions with reference to contemporaneous medical evidence back in 2020 to 2021.  The new psychiatric/psychological symptoms or problems, if any, that have arisen at a very late stage for which P resumed treatment in early 2025 were not resulted from the Accident.

39.D further argues that P did not have any genuine intention to rely on her psychiatric conditions as a basis of her claim herein until sometime in 2024 as shown in the conduct of her claim as follows:-

(1)  In the Statement of Damages filed on 20 July 2022[10], P pleads her present problems to include right ankle pain and left thigh pain only, and she has not attached any report from her treating psychiatrist.  Under the heading “Other impacts to my life”, P’s plea relates to her right ankle disabilities, pain and medical expenses for pain relief only[11] without reference to any psychiatric/psychological symptoms or problems;

(2)  In her witness statement dated 21 March 2023[12], P makes no mention of her psychiatric conditions.  She briefly mentions clinical psychology referral to PYNEH by her orthopaedic doctor due to past medical history, but not for any psychological/psychiatric injury suffered as a result of the Accident.  The basis of her claim for loss of earnings is based solely on her physical orthopaedic impairment[13];

(3)  Despite the alleged immediate manifestation of psychological symptoms after the Accident, there was a long delay in P first making any request for adducing expert evidence in psychology or psychiatry since mid-2023, until the Summons was finally issued on 10 February 2025; and

(4)  P did not disclose that she had suffered from psychiatric conditions until the recent disclosure of the report dated 30 October 2024[14]  by Dr Tammy Chan of the Department of Psychiatry of PYNEH.  Neither had she adduced any evidence nor indicated ever that she was suffering from any continual psychiatric issues, until she took out the Summons on 10 February 2025, and resumed treatment on the day thereafter.

40.D further argues that P did not make any claim based on her psychiatric conditions until after obtaining the orthopaedics medical expert report dated 31 January 2024 from single joint expert (“SJE”)  Dr Lam Kwon Chin (“Dr Lam”)  who opines that her physical injuries were minor.  She then pursued the request for obtaining psychiatric expert evidence, took out the Summons and made the effort to resume clinical psychology and psychiatric treatment, aiming to increase her claim.

ANALYSIS

Prima Facie Case

41.Medical evidence supports immediate manifestation of mental conditions such as features of PTSD and BAD immediately after the Accident, for which P had attended clinical psychology services and psychiatric treatment for a year.  Apparently the mental conditions and symptoms described in the reports by CP Kwok and Dr Tammy Chan are not minor as argued by D.

42.There should be no question that such immediate manifestation was accompanied by physical injury of the right ankle[15].

43.Despite the medical history of previous attendance in government psychiatric services back in 2013, previous diagnoses made were different from those of PTSD/BAD and other symptoms and findings made in the year after the Accident.  There is no evidence of pre-existing psychiatric conditions or symptoms in the period immediately preceding the Accident.

44.At the hearing before the Master, D’s solicitor had confirmed that D would not contest the cause of P’s psychological symptoms (manifested immediately after the Accident)  but would dispute the psychiatric symptoms that had arisen at a much later stage.  It was because P was unable to produce objective evidence or medical records or notes for the 4-year gap from January 2021 until February 2025 to prove that such psychiatric injury, if any, is accompanied by her physical injury sustained in or caused by the Accident[16].

45.At the appeal hearing, D’s counsel Ms Lam first clarifies that D only concedes on the cause of the psychological symptoms that manifested immediately after the Accident but not the psychiatric symptoms that arose 4 years later in 2025.

46.I query that this is a wrong approach.  There is no evidence on the differentiation between psychological and psychiatric symptoms.  I agree with Mr Kwok’s submissions that PTSD and BAD recorded by CP Kwok, same as those diagnosed by the treating psychiatrist of PYNEH in the year after the Accident, are classic and recognised psychiatric illnesses.

47.Upon this Court’s query, Ms Lam shifts her position and confirms that D would only agree that there was manifestation of mental symptoms immediately after the Accident, but not causation - I query if this is necessary or of assistance.

48.The immediate manifestation, likely aftermath of the Accident, is supported by concrete medical evidence, with or without acknowledgement or concession of D.

49.Matters of P’s mental conditions, treatment and problems are pleaded in the Statement of Damage[17] and referred to in her witness statement[18].  Her pleaded case is that she could not resume work due partly to psychological issues during the period from 1 January 2020 to 7 April 2021; she claims loss of earning capacity on account of the injuries and psychological problems.

50.D should all along know about P’s case of mental problems having been resulted from the Accident; they are contained in the medical evidence, the pleadings and P’s witness statement.  No prejudice is demonstrated should leave be granted to adduce psychiatric expert evidence at this stage.

51.P has given reasons for nil or default of treatment for 4 years though she had allegedly all along been suffering from mental conditions.  She sought treatment again on 11 February 2025 and was treated as an urgent case.

52.As to the lateness of P’s application, her previous solicitors had since mid-2023 made requests for expert evidence in psychiatry/ psychology though there had been inaction and delay after that until 10 February 2025 when the present solicitors issued the Summons.

53.I also note that there were changes of legal representation of 2 previous firms of P’s solicitors before the current solicitors took over conduct in September 2024 and took prompt action to pursue the matter.  I share the sentiment expressed by the court in Wong Yin Chau (supra) that P should not be punished due to the incompetence or inefficiency, if any, of the previous solicitors.

54.The length of delay in the present case, if one takes the time of manifestation of mental symptoms (2 January 2020)  up to the time of the Summons (10 February 2025), is 5 years.  This is similar to the lateness of application considered by the court in Wong Yin Chau (supra).

55.The questions whether P’s reasons for the delay/inaction/default of treatment are reasonable or should be accepted, or whether she had in fact already recovered hence did not require any psychological/psychiatric attendance or treatment during those 4 years, would be a matter for the trial judge - he would require assistance of medical expert evidence in considering these questions.

56.On the present medical evidence, it would be wrong in my view for the court to making findings of fact and come to a conclusion on causation at the interlocutory stage, and deprive P of her substantive rights of adducing psychiatric expert evidence.

SJE Dr Lam’s Recommendation

57.Dr Lam states his opinion regarding P’s mental conditions in the SJE report dated 31 January 2024 as follows[19]:-

“99. Apparently, the bipolar affective disorder is not caused by the accident. Should more details be required, further opinions from her attending psychiatrists should be sought…

…..

115.  As (P)  has stopped psychiatry/ clinical psychology treatment, and there is no apparent psychiatry/psychology problem, there is no indication for her to be examined by other specialties.”

58.Ms Lam relies on Dr Lam’s opinion in arguing that psychiatric expert evidence is not necessary.

59.Mr Kwok on the other hand argues that Dr Lam has clearly stated the need/made a positive recommendation for psychiatrist’s opinion, though he has inappropriately identified the expert candidate to be the “attending psychiatrists”.

60.In my view, it is inappropriate for Dr Lam, an orthopaedic expert, to give opinion/make a conclusion outside his expertise on the causation of BAD.  His conclusion seems to be based on the fact that P had stopped psychiatry/clinical psychology treatment and there is no apparent psychology/psychiatry problem, but not a considered opinion based on medical evidence.

61.It is also inappropriate for Dr Lam to suggest to ask the treating psychiatrists’ opinion on causation.  As submitted by P’s counsel, the primary concern of treating doctors was about taking information, making diagnosis and delivering treatments.  The clinical records and reports of a treating doctor are always admissible to prove the injuries, the diagnosis, development and treatment and they are unlikely to be controversial.  The doctor-patient relationship is based on trust, and the treating doctor would not assess critically the reported complaints of his patient.

62.A treating doctor would be a witness of fact on these treatment matters, but must not be asked of his opinions and turned into an expert witness.

63.Whereas the duty of a medical expert witness, owed to the court, is to review the case history, past treatments and development, thereafter to examine the injured person and give independent and fair opinions on diagnosis, causation, present condition, impairment, disability, functionality, work capacity, sick leave, prognosis and future treatments, if any:  See Wong Cheuk v Falcone Insurance Company (Hong Kong)  Limited (DCEC 688/2008, 20 May 2009)  at §§44 to 46.  An independent expert witness would be required for that purpose.

64.I agree with Mr Kwok that Dr Lam has acknowledged the need for opinions from a psychiatrist.

CONCLUSION

65.Considering all matters, I am satisfied that a prima facie case has been made out.  The proposed psychiatric expert evidence would be relevant, necessary and of probative value to enable the trial judge to resolve the issues in dispute.

66.Psychiatric expert evidence will be required to assist the court at trial in her consideration of the issues submitted by Mr Kwok and summarised in §27 hereinabove.  The issue of causation of psychiatric injury, if any, in particular would likely be a complex mixed question of fact and medicine in this case.  This is a matter for the court to decide, with the assistance from an expert in this field.

67.I have next considered other relevant circumstances such as proportionality, potential disruption to trial, prejudice to D and explanation for the lateness of the Summons.  These other matters do not in my view tip the balance towards depriving P of the opportunity to adduce psychiatric expert evidence.

68.Ultimately the court strives to do justice, ensure fairness between the parties and secure a just resolution in accordance with the parties’ substantive rights.

69.I conclude that it is appropriate to grant leave to adduce adduce psychiatric expert evidence.

ORDER

70.I made the following order at the conclusion of the hearing:-

(1)  P’s appeal be allowed and leave be granted to the parties to adduce medical expert evidence in psychiatry; and

(2)  The Order of Master J Chow dated 6 June 2025, together with the costs order, be set aside.

71.Parties were heard on further conduct of the action.  Case management directions were given at the end of the hearing for adducing medical expert evidence in psychiatry and filing of further witness statement(s)  as to quantum, Revised Statement of Damages and the Answer thereto, and further conduct until the next Checklist Review hearing fixed for 16 April 2026.

COSTS

72.Costs should follow the event.

73.D argues that it was not unreasonable to oppose the Summons given the lack of medical evidence of continual mental conditions of P and nil psychiatric/clinical psychological treatment during the long interim period of 4 years, P’s inaction, the lateness of the Summons, and the fact that P only resumed seeking psychiatric treatment the day after issue of the Summons.

74.Upon hearing the parties’ submissions on costs, I made a costs order that:-

(1)  D do pay P’s costs of the Appeal, with certificate for counsel, to be taxed if not agreed;

(2)  D do pay 2/3 of the costs, including all costs reserved, of the Summons, to be taxed if not agreed; and

(3)  P’s own costs be taxed in accordance with the Legal Aid Regulations.

75.Lastly, I thank counsel for their assistance.

Mr Tim Kwok, instructed by Messrs Mike So, Joseph Lau & Co., assigned by the Director of Legal Aid, for the Plaintiff

Ms Flora Lam, instructed by Messrs Winnie Leung & Co., for the Defendant