Hong Kong Baptist Hospital v. Chang Iris Jacqueline

DCCJ 378/2019

[2026] HKDC 194

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 378 OF 2019

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JUDGMENT

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1.This is the trial of the action commenced by the Plaintiff (“P”), a private general hospital, on 23 January 2019, against the Defendant (“D”), who is the natural daughter of a patient admitted to P for medical treatment from 3 April to 9 May 2018 (the “Patient”), for the recovery of the outstanding balance of hospital and medical expenses in the sum of HK$967,697.00. The Patient is D’s late mother who had incurred hospital and medical expenses during the aforesaid period of hospitalization.

2.D is a registered pharmacist in Hong Kong with over 20 years of experience. In essence, D defended the action by contending that she has not entered into any agreement with P whereby P would admit the Patient for treatment in consideration of D’s personally responsible for payment of all hospital and medical expenses incurred by the Patient during her admission. D further contended that there was a mutual understanding at the time of admission that the Patient herself would be solely responsible for her own expenses.

3.By Memorandum of Notification of an Application for Legal Aid dated 8 July 2025 and filed on 9 July 2025 (the “Memorandum”), this Court was notified of D’s application for Legal Aid. The Memorandum was placed before this Court on 16 July 2025 for consideration. In view of the imminence of the trial and the serious disruptive impact of the Memorandum on the trial, I invited parties to lodge their written submissions, in the main, on whether this Court should exercise its discretion to uplift the statutory automatic stay arising from D’s legal aid application. The issue whether the automatic stay should be uplifted was dealt with on the 1^st day of the trial and I ordered the statutory automatic stay be uplifted and the trial should proceed without further ado. The reason for my decision was pronounced orally on the same day. Immediately thereafter, the trial proceeded.

4.At trial, P was represented by Mr Alvin Chong (“Mr Chong”) of Counsel and called 6 factual witnesses viva voce. They are as follows and in the following order:

(a)  Ms Fong Hoi Ki (“Ms Fong”) (a customer service officer of P from 2013 to late 2018)[1];

(b)  Dr Leung Chung Chuen Roland (“Dr Leung”) (a medical doctor specialized in respiratory medicine)[2];

(c)  Mr Tong Yan Keung (“Mr Tong”) (a person in charge of the admission office of P)[3];

(d)  Ms Chan Sin Yu (“Ms Chan”) (a cashier of P)[4];

(e)  Ms Cheung Hiu Wing (“Ms Cheung”) (an assistant accountant of P)[5]; and

(f)  Ms Mak Chui Yee (“Ms Mak”) (an accounting assistant of P retired on 19 July 2022 but rejoined P as a temporary accounting assistant until 1 November 2022)[6].

5.D was unrepresented and acted in person. She elected to give evidence viva voce[7].

6.After hearing the oral closing of D and Mr Chong on 30 July 2025, I adjourned the trial for my written judgment to be handed down.

7.This I now do.

UNDISPUTED & INDISPUTABLE BACKGROUND

8.The Patient started attending P for medical treatments since 1996. Prior to 3 April 2018, the Patient had attended P 4 times for medical treatments.

9.On 22 March 2018, the Patient, then aged 79, suffered a stroke and was admitted to the A&E Department of Queen Elizabeth Hospital (“QEH”) to undergo a “Removal of Blood Clot” operation. After the operation, the Patient stayed in the ICU of QEH.

10.On 3 April 2018:

(a)  The Patient, accompanied by D, was transferred with medical escort from the ICU of QEH to the ICU of P by ambulance so that the Patient could be attended to and taken care of by Dr Leung at P. The Patient was weak and was intubated with ventilator support for breathing. Intubation with ventilation machine would affect the Patient’s brain functioning because intubation required sedation and the Patient was also under the influence of many different drugs. The Patient was “conscious” but could not comprehend everything.

(b)  D attended the admission documentation handled by Ms Fong at the admission counter required for the admission of Patient to P. At the admission counter, Ms Fong handled the following 2 documents with D:

(i)  A 1-page document entitled “ADMISSION RECORD and AGREEMENT” divided into 3 parts: (aa) A table captioned “PATIENT DETAILS” – the place where the particulars relating to the Patient were to be filled in; (bb) a section captioned “PAYMENT PARTICULARS” relating to, for instance, the Payment Plan Type, Room Charge, Bed Class, Deposit Payable, and etc; and (cc) a section captioned “PAYER PARTICULARS (if not the Patient)” with Payer Name, Telephone No, Address and Relationship to be filled in. Between the sections of “PAYMENT PARTICULARS” and “PAYER PARTICULARS (if not the Patient)” contained a standard body of the agreement with a place for signature by the Patient/Payer indicating acceptance of the terms of the agreement[8] (the “Admission Record & Agreement”).

(ii)  A 1-page document entitled “Defer Payment of Admission Deposit” containing, in the main, 3 parts: (aa) a standard operative clause with a place for signature by the Patient/Guarantor; (bb) a table captioned “Guarantor personal particulars” with Guarantor personal particulars to be filled in; and (cc) a section stated “Reason of Deferred” for the reason to defer payment of admission deposit to be filled in[9] (the “Deposit Deferral Form”).

11.On or around 6 Apil 2018:

(a)  The Patient required a tracheostomy operation. As the Patient was not able to understand and consent to the operation/medical procedure/nature and effect of the treatment proposed by the doctor, D signed a “無能力給予同意接受手術/醫療程序/治療表格”[10] (the “Consent Form”) acknowledging her understanding and agreement for the tracheostomy operation to be performed on the Patient. The treating doctor, Dr Ng Wai Man, and Dr Leung also signed the Consent Form, confirming their opinion that the tracheostomy operation was in the best interest of the Patient.

(b)  D gave P a cheque for HK$50,000 issued by HKAPH Limited[11] (“HKAPH”), a company solely owned by D[12], as payment of the HK$50,000 deposit (the “Cheque”).[13]

12.On 9 April 2018, D notified P that the Cheque would be stopped[14], and arranged payment of the HK$50,000 deposit by 2 visa credit cards in the sums of HK$44,730 and HK$5,270 respectively[15].

13.On 10 April 2018, Hang Seng Bank advised P by letter that the payment by the Cheque was countermanded by the drawer.[16]

14.On 12 April 2018, Ms Mak arranged a “Reminder for Payment of Interim Bill” of HK$384,569 in respect the Patient to be provided to D at the ICU of P.[17]

15.On 13 April 2018, Ms Mak tried to contact D, but D refused to talk to her.[18]

16.On 16 April 2018:

(a)  Ms Cheung received a phone call from D who said that the interim charges would be settled by telegraphic transfer and asked Ms Cheung to fax the bank account information of P to her. Over the same phone call, D also said that she would provide a fax number to Ms Cheung but she has not done so.[19]

(b)  The Patient was transferred from the ICU to ward B610.[20]

17.On 17 April 2018, Ms Cheung arranged to provide D with P’s bank account information at ward B610.[21]

18.On 18 April 2018, a reminder to pay outstanding hospital charges of HK$481,796 was given to D through the nurse of ward B610.[22]

19.On 22 April 2018, the medical expenses of the Patient accumulated to HK$677,410.[23]

20.On 23 April 2018, Ms Mak called D but no one answered. Ms Mak therefore told the nurse of ward B610 to tell D to contact accounts office.[24]

21.On 24 April 2018, Ms Mak called the nurse of ward B610 and asked to speak to D. D refused to talk to her but told the nurse that she would contact the accounts office the next day.[25]

22.On 25 April 2018, D called Ms Mak, telling Ms Mak that arrangement had been made to transfer HK$300,000 odd from Thailand to P to settle the interim bill but it would take 14 to 17 days to reach P’s account. Ms Mak told D that the interim bill had accumulated to over HK$600,000 but D said that the interim bill in her possession was HK$300,000 odd. D, however, could not provide the telegraphic transfer papers.[26]

23.On or about 25 April 2018, the admission office deposited the Admission Record & Agreement at the cashier office for signature by D.[27]

24.On 26 April 2018, a reminder to pay hospital bill was given to D.[28]

25.On 29 April 2018, one 鍾梅英 (“Madam Chung”) attended the cashier office and told Ms Chan that she came to the cashier office to sign and collect document. Madam Chung wrote down her telephone number, address and identity card number and signed on the Admission Record & Agreement. When Ms Chan asked Madam Chung how she would pay the interim bill, she said that she came not to pay the bill and that D just asked her to sign and collect documents.[29]

26.On 30 April 2018, Ms Cheung called D, informing her that the hospital bill had reached HK$803,000 and asking when the bill would be paid. D said that she would ask her lawyer because the bank account belonged to the Patient[30] and the money was in the Patient’s bank account[31].

27.On 2 and 8 May 2018, reminders to pay hospital bill were given to D.[32]

28.On 9 May 2018:

(a)  The Patient was discharged from P and transferred to government hospital.[33]

(b)  A final bill was issued, totalling HK$1,017,697 and after deducting the deposit of HK$50,000, the outstanding balance being HK$967,697 (the “Outstanding Sum”).[34]

(c)  Mr Tong asked D to sign a letter of Indemnity, in which D personally wrote down “Will arrange transfer to Bank [illegible] Hang Seng Bank 366-001212-688 around 1-2 months 15 July 2018. Can contact Fung [illegible] (Brother) 2335-0097” in the space for “method of payment of outstanding fees to P”[35] (the “Letter of Indemnity”).[36]

29.On 7 June 2018, the Patient passed away from pneumonia and ischemic bowel at QEH.[37]

30.On 22 June 2018, P issued a letter of demand for the Outstanding Sum.[38]

31.On 2 August 2018, P’s solicitors issued a demand letter to D and Madam Chung for the Outstanding Sum.[39]

32.On 6 August 2018, Madam Chung wrote a letter to P’s solicitors, stating, inter alia, that she did not know the Patient, worked for her for 3 hours and she was instructed by D to collect documents from the accounts office.[40]

33.On 17 August 2018, P’s solicitors issued another letter of demand to D for the Outstanding Sum.[41]

THE PARTIES’ RESPECTIVE CASES

P’s Case[42]

34.P and D entered into an agreement on or about 3 April 2018 whereby, in consideration of P (a) admitting and/or allowing the admission of the Patient with P and (b) providing medical treatments and hospital services to the Patient, D covenanted with P to pay for the costs of medical treatments and hospital services to be incurred by the Patient. (the “Agreement”)

35.The Agreement was contained and/or evidenced in writing and/or by the conduct of P and D.

(a)  The Agreement was contained in and/or evidenced by:

(i)  the Admission Record & Agreement; and

(ii)  the Letter of Indemnity.

(b)  The Agreement was evidenced by the following conducts of the parties:

(i)  On or about 3 April 2018, D brought the Patient to the admission office of P and requested P for immediate admission and hospitalization of the Patient in the ICU of P;

(ii)  On the same occasion, D supplied in her own handwriting her personal particulars to P as the person responsible for the costs of the medical treatments and hospital expenses to be incurred by the Patient under the column “Payer Particulars (if not the Patient)”;

(iii)  On or about 6 April 2018, D produced the Cheque on account of the costs of medical treatments and hospital expenses incurred or to be incurred by the Patient;

(iv)  On or about 9 April 2018, D notified P that the Cheque would be bounced and D arranged substituted payment by and through 2 credit cards in the respective sums of HK$44,730 and HK$5,270; and

(v)  Between 3 April and 9 May 2018, P provided medical treatments and hospital services to the Patient which were accepted by both the Patient and D thereby incurring a total cost of HK$1,017,697.

36.After giving credit to the HK$50,000 deposit payment, P demanded and sued for the Outstanding Sum.

D’s Case[43]

37.In the past when the Patient was hospitalized in P, all medical and hospital expenses incurred by her were fully settled by her own to P.

38.On 3 April 2018, the Patient was transferred from QEH to P and D, as the Patient’s agent, assisted the Patient in her admission procedure on her behalf in accordance with the Patient’s advance directives[44]. During the admission process, D clearly made known to the admission staff of P for several times that the Patient would be the one to pay for her own hospital expenses incurred in P and that D was only assisting the Patient to be admitted to P on her behalf.

39.D denied the Agreement or any agreement made between P and D.

(a)  D denied that the Admission Record & Agreement was an agreement made between P and D. D had no intention to be legally bound by the Admission Record & Agreement and P clearly knew that.

(b)  D denied that by filling in the information under the column “Payer Particulars (if not the Patient)”, D agreed to be responsible for the cost of the medical treatments and hospital services to be incurred by the Patient. D made known to the admission staff that the Patient would be the one to pay for her own hospital and medical expenses incurred.

(c)  D denied that she wrote her full and correct name under the column “Payer Particulars (if not the Patient)”.

40.There was a mutual understanding between D and the admission staff that D did not agree to pay for the medical expenses of the Patient and that the Patient would be fully responsible for her own hospital expenses (the “Mutual Understanding”). During the admission process:

(a)  D clearly informed the admission staff that the Patient would be responsible for her own hospital and medical expenses incurred at P as the Patient had done in the past when receiving hospital services from P. The admission staff nodded her head to acknowledge that D would not be responsible for the Patient’s medical cost.

(b)  D made it clear to the admission staff that as she would not pay for the Patient’s medical expenses, it was not appropriate for her to sign at the signature space under the statement “I hereby guarantee to pay the hospital bill immediately upon presentation, arising from the above patient’s stay in the hospital” of the Admission Record & Agreement. D did not sign at the said signature space.

(c)  The admission staff did not require D to put down her full name in the Admission Record & Agreement or to sign thereat.

(d)  The admission staff did not ask D to produce her Hong Kong identity card to verify her identity and the accuracy of her name.

(e)  D asked the admission staff if she should replace her personal details with the Patient’s personal details under the column “Payer Particulars (if not the Patient)” to ensure that P would not be mistaken as to who would pay for the Patient’s medical expenses. The admission staff, however, said that it was not necessary to make any amendment given the Mutual Understanding.

(f)  After filling in the Admission Record & Agreement, the admission staff further asked D to fill in the Deposit Deferral Form. D wrote down the name of the Patient and the Patient’s phone number under the column “Guarantor personal particulars”. D also stated in the Deposit Deferral Form that the reason for the Patient’s deferral of the deposit payment was that her family would arrange for payment of the deposit on her behalf. The admission staff did not ask D to make any amendment on the Deposit Deferral Form in light of the Mutual Understanding.

41.It was Madam Chung who wrote down her name, personal details and signed under the statement “I hereby guarantee to pay the hospital bill immediately upon presentation, arising from the above patient’s stay in the hospital” of the Admission Record & Agreement.

42.D did not write down her name or other personal details on the Letter of Indemnity. Neither did D sign on the same. The Letter of Indemnity was merely a draft document which P had prepared with the express intention to obtain the thumbprint of the Patient as the person to sign the Letter of Indemnity.

43.As regards the Cheque, it was originally intended that Mr Fung would arrange for the transfer of HK$50,000 cash from the Patient’s assets into the bank account of HKAPH in order to facilitate D in settling the deposit payment on behalf of the Patient. Mr Fung, however, was unable to arrange for the transfer in time. As a result, D notified P that the cheque would be stopped.

44.D denied that she arranged for the payment of the deposit via credit cards. The business friends of the Patient went to P’s cashier office in person and paid the HK$50,000 deposit by 2 credit cards on behalf of the Patient.

45.D merely acted as an agent of the Patient in handling the admission and hospitalization procedures on her behalf. D has never agreed to pay for the hospital expenses of the Patient. Neither has D assumed liability for the cost of the medical treatments and hospital services provided to the Patient.

46.The alternative case of D is fraudulent or negligent misrepresentation and the misrepresentation is by P’s conduct[45] to D that D would not have to pay P for the hospital expenses incurred by the Patient. Hence, D is entitled to rescission of the Agreement.

THE ISSUES

47.I understand that the parties have filed their respective List of Issues on 26 June 2025. Instead of adopting their List of Issues verbatim, the following are the brief issues culled from the pleadings: -

(a)	Whether there was the Agreement, ie in consideration of P (i) admitting and/or allowing the admission of the Patient with P and (ii) providing medical treatments and hospital services to the Patient, D covenanted with P to pay for the costs of medical treatments and hospital services to be incurred by the Patient. (the “1st Issue”)
(b)	(i)	Whether there was the Mutual Understanding, ie D did not agree to pay for the medical expenses of the Patient and the Patient would be fully responsible for her own hospital expenses. (the “2nd Issue”)
	(ii)	Alternatively, whether P had by conduct misrepresented to D that D would not have to pay for the hospital expenses incurred by the Patient, and, if in the affirmative, whether the misrepresentation was fraudulent or negligent which this Court should exercise its discretion to rescind the Agreement. (the “3rd Issue”)
(c)	(i)	Whether D merely acted as the Patient’s agent in handling the admission and hospitalization procedures of the Patient. (the “4th Issue”)
	(ii)	Even if D was the agent of the Patient in handling the admission and hospitalization procedures, whether D was still personally liable to P under the law of agency. (the “5th Issue”)

48.Before I embark on my journey in resolving the aforesaid issues in the later section “Analysis of the Evidence” of this Judgment, I shall briefly state some legal principles applicable to this case.

THE APPLICABLE LEGAL PRINCIPLES

Formation of Agreement

49.If the offer expressly refers to a method of acceptance (such as signature by the offeree), that method needs only be complied with if, on the true construction of the offer, it is intended to be the only method of acceptance.[46]

50.The fact that the agreement envisages a signature and leaves a space for those signatures is not a “prescription” that the agreement can only become binding on the appending of signatures. The signatures are evidence and no doubt the best evidence of what had been agreed, but they are not themselves conditions of the agreement.[47]

51.Acceptance can be by the conduct of the offeree. But conduct will only amount to acceptance if it is clear that the offeree’s alleged act of acceptance was done with the intention (ascertained in accordance with the objective analysis) of accepting the offer.[48]

52.It is trite law that, although no contract can be made without an intention to be legally bound, that intention has to be ascertained objectively by looking at the entire conduct of the parties over the relevant period.[49]  Whether there is a binding contract between the parties and, if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations. Even if certain terms of economic or other significance to the parties have not been finalised, an objective appraisal of their words and conduct may lead to the conclusion that they did not intend agreement of such terms to be a precondition to a concluded and legally binding agreement.[50]

53.The Court of Appeal in Reveille Independent LLC v Anotech International (UK) Ltd [2016] EWCA Civ 443 at [40]-[42] has distilled from a plethora of authorities the following relevant legal principles which are worth reciting here:

“40. There are a number of rules of English contract law which, in combination, bear on the resolution of this appeal. First, classical analysis finds the parties' consent to a contract in the acceptance of an offer, and it is well accepted that acceptance can be by the conduct of the offeree so long as that conduct, as a matter of objective analysis, is intended to constitute acceptance: Brogden v. Metropolitan Railway Co (1877) 2 App Cas 666. Secondly, as in Brogden, acceptance can be of an offer on the terms set out in a draft agreement drawn up between the parties but never signed. Thirdly, if a party has a right to sign a contract before being bound, it is open to it by clear and unequivocal words or conduct to waive the requirement and to conclude the contract without insisting on its signature: Oceanografia SA de CV v. DSND Subsea AS (The Botnica) [2006] EWHC 1360 (Comm); [2007] 1 All E.R. (Comm) 28 at [94], per Aikens J.

41. Fourthly, if signature is the prescribed mode of acceptance an offeror will be bound by the contract if it waives that requirement and acquiesces in a different mode of acceptance. In my view it follows that where signature as the prescribed mode of acceptance is intended for the benefit of the offeree, and the offeree accepts in some other way, that should be treated as effective unless it can be shown that the failure to sign has prejudiced the offeror: see Chitty on Contracts, 32^nd ed, 2015, §§2-066, 2-067; MSM Consulting Ltd v. United Republic of Tanzania [2009] EWHC 121 (QB), at [119] per Christopher Clarke J. Fifthly, a draft agreement can have contractual force, although the parties do not comply with a requirement that to be binding it must be signed, if essentially all the terms have been agreed and their subsequent conduct indicates this, albeit a court will not reach this conclusion lightly: RTS Flexible Systems v. Molkerei Alois Muller GmbH [2010] UKSC 14, [2010] I WLR 753, at [54]-[56]. Finally, the subsequent conduct of the parties is admissible to prove the existence of a contract, and its terms, although not as an aid to its interpretation: Chitty on Contracts, 32^nd ed, 2015, §13-129.

42. These rules take effect against the background of legal policies recognised in the case law. One such policy is the need for certainty in commercial contracts, a policy which since Lord Mansfield's time has run as a thread through the jurisprudence. That need for certainty applies as well in commercial negotiations and to the question of whether a contract has come into existence: see Cobbe v. Yeoman's Row Management Ltd [2008] UKHL 55; [2008] 1 WLR 1752, at [91] per Lord Walker. A second policy is that in commercial dealings the reasonable expectations of honest, sensible business persons must be protected. In giving the judgment of the Supreme Court in RTS Flexible Systems Ltd v. Molkerei Alois Muller GmbH, Lord Clarke, at [50], approved dicta of Steyn LJ in G. Percy Trentham Ltd v. Archital Luxfer Ltd [1993] 1 Lloyd's Rep 25, that when considering whether a contract has come into existence, "the governing criterion is the reasonable expectations of honest sensible businessmen. Contracts may come into existence, not as a result of offer and acceptance, but during and as a result of performance" (see also First Energy (UK) Ltd v. Hungarian National Bank Ltd [1993] BCC 533, 533, per Steyn J). In a further passage in Percy Trentham, also approved by Lord Clarke, Steyn LJ said that a matter of importance to be considered in contract formation was

“the impact of the fact that the transaction is executed rather than executory... The fact that the transaction was performed on both sides will often make it unrealistic to argue that there was no intention to enter into legal relations. It will often make it difficult to submit that the contract is void for vagueness or uncertainty. Specifically, the fact that the transaction is executed makes it easier to imply a term resolving any uncertainty, or, alternatively, it may make it possible to treat a matter not finalised in negotiations as inessential." at page 27.

In my view the same realistic approach must be taken in deciding whether a party has accepted an offer through its conduct.” (Emphasis added)

54.The Court of Final Appeal has also scholarly elucidated the legal basis for implying a contract by conduct in Shanghai Tongji Science & Technology Industrial Co Ltd v Casil Clearing Ltd (2004) 7 HKCFAR 79 at [36]-[46] as follows:

“36. It is clear that a legally binding contract may be inferred from the conduct of the parties. In deciding whether a contract should be implied, the court adopts as its starting-point what has generally been called “an objective test”. Chitty on Contracts (28th ed., 1999) puts this as follows:

In deciding whether the parties have reached agreement, the courts normally apply the objective test ... Under this test, once the parties have to all outward appearances agreed in the same terms on the same subject-matter, then neither can, generally, rely on some unexpressed qualification or reservation to show that he had not in fact agreed to the terms to which he had appeared to agree. Such subjective reservations of one party therefore do not prevent the formation of a contract. (Chitty on Contracts (28^th ed., 1999) Vol.1, pp.89-90 §2-001)

37. An illustration of the objective test's application can be found in The Aramis [1989] 1 Lloyd's Rep 213. …

…

38. The burden of establishing such a contract is on the person asserting its existence: Brogden v Metropolitan Railway (1877) 2 App Cas 666 at p.693. And the court will not imply such a contract lightly. The conduct relied on must be unequivocally referable to the contract sought to be inferred. …

…

40. Where the conduct in question satisfies the objective test the law generally excludes as irrelevant evidence of a party’s actual intentions regarding the contract to be implied. In Allied Marine Transport Ltd v Vale do Rio Doce Navegacao SA (The Leonidas D) [1985] 1 WLR 925 at p.936, Robert Goff LJ explained this as follows:

... if one party, O, so acts that his conduct, objectively considered, constitutes an offer, and the other patty, A, believing that the conduct of O represents his actual intention, accepts O's offer, then a contract will come into existence, and on those facts it will make no difference if O did not in fact intend to make an offer, or if he misunderstood A's acceptance, so that O's state of mind is, in such circumstances, irrelevant.

41. The general exclusion of evidence of subjective intent in determining whether the parties have impliedly created a contract by conduct is however subject to one qualification. As acknowledged in the passage from Robert GoffLJ just cited, A's belief that "the conduct of O represents his actual intention" is relevant. Professor Treitel formulates this qualification as follows:

... the principle is not purely objective: A is not bound merely because "a reasonable man would believe that he was assenting to the terms proposed by the other party". In particular, there will be no contract if (in spite of the objective appearance of agreement) B actually knows that A in fact has no intention to contract with him, or to contract on the terms alleged. A subjective element thus qualifies the objective principle; and this follows from the purpose of that principle, which is to protect B from the prejudice he would suffer as a result of relying on a false appearance of agreement. There is clearly no need in this way to protect a party who knows that the objective appearance does not correspond with reality. (GH Treitel, The Law of Contract (11th ed., 2003) p.1)

…

46. Chitty on Contracts (28th ed., 1999) provides a helpful summary in the following terms:

... the objective test is ... subject to the limitation that it does not apply in favour of a party who knows the truth. Thus ... the party who did not intend to be bound would not be bound if his state of mind was actually known to the other party. Nor could a party who did not in fact intend to be bound invoke the objective test so as to hold the other party to the contract: to apply that test in such a case would pervert its purpose, which is to protect a party who has relied on the objective appearance of consent from the prejudice which he would suffer if the other party could escape liability on the ground that he had no real intention to be bound. (at p.156 §2-148)” (Emphasis added)

Core Principles of Misrepresentation

55.DHCJ Alexander Stock SC in Joytex Development Ltd v. Super Homes Ltd [2018] HKCFI 2286 at [77]:

“77. I consider it helpful to outline a few core principles, for which see eg Yang Dandan v Hong Kong Resort Company Ltd CACV 247/2015, 9 August 2016 per Kwan JA at §§52 - 55 and 67 - 74, and Misrepresentation, Mistake and Non-Disclosure by Cartwright (4th ed) Chapter 3:

(1) Generally, an actionable misrepresentation requires a false statement of past or present fact, as distinct from a statement of opinion or intention; though a statement of opinion/intention or as to the future may entail an implied statement of fact.

(2) Where there is a dispute as to the meaning conveyed, the court interprets the relevant words or conduct. The approach is objective, viewing the communication from the perspective of a reasonable person in the position of the representee. The test is whether: (a) the words or conduct in fact led the representee to believe the alleged false fact; and (b) it was reasonable for the representee to believe it from the words or conduct as he perceived them. In applying the test, the characteristics of the representee, including level of sophistication, are taken into account.

(3) Where an implied representation is alleged, the question is what a reasonable person would have inferred was being impliedly represented by the representor's words and conduct in their context.

(4) The statement must have the character of one upon which the representee was intended and entitled to rely.

(5) The representee must have in fact relied on the statement; though this can sometimes be inferred. The representation need not be the only or main cause of the decision to contract. It is generally sufficient that it be a cause (in other words, a material inducement).”

56.Where a defendant makes a false representation, knowing it to be untrue, or being reckless as to whether it is true, and intends that the plaintiff should act in reliance on it, then in so far as the latter does so and suffers loss the defendant is liable.[51]

57.The person alleging fraud has the burden of proof. The standard of proof is the civil standard but the evidence in support must be both strong and cogent. Any inference to be drawn in establishing fraud on the part of the plaintiff must also be a compelling one, sufficient to overcome the inherent improbability that the serious allegation would have happened.[52]

58.At common law, a negligent misrepresentation is one which is made carelessly, or without reasonable grounds for believing it to be true.[53]  A person who made a negligent statement could owe a duty of care to a person who suffered financial loss through reliance upon the statement.[54]

59.Even where the representee has established a prima facie case to rescind, the representor may show that rescission is not available. Rescission may be barred by the representee’s affirmation, lapse of time and impossibility of restitution.[55]

Legal Principles of Agency

60.It is settled principle of law that an agent who enters into a contract on the principal’s behalf is liable to the other contracting party in accordance with the terms of any contractual engagement into which the agent has entered, unless he has expressly or impliedly negatived his personal liability.[56]

61.The agent, despite describing itself as agent, is personally liable if it signs the contract unqualified.[57]  Where the issue is whether a party signed a document as principal or as agent for someone else, there is no automatic relaxation of the parol evidence rule. The person who signed is the contracting party unless (a) the document makes clear that he signed as agent for a sufficiently identified principal or as the officer of a sufficiently identified company, or (b) extrinsic evidence establishes that both parties knew he was signing as agent or company officer.[58]

General Approach to Evaluating Evidence

62.In respect of evaluating the evidence given by witnesses, guidance can be found in Lee Fu Wing v Yau Po Ting Paul[59], in which DHCJ Au (as he then was) said: -

“53. In assessing the credibility of a party’s case on a particular issue, I accept the submissions of [counsel] that the Court should take into considerations (sic) the following:

(a) Whether the party’s case is inherently plausible or implausible;

(b) Whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable;

(c) Where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests. This is relevant to the assessment of his overall credibility; and

(d) The demeanour of the witnesses.”

63.In Taishin International Bank Co Ltd v QFI Ltd [2020] HKCFI 2116, DHCJ Paul Lam SC set out the general principles that the court should apply in assessing the credibility of a witness; in particular, citing one English Chancery case and one English Court of Appeal case at [13] and [14] respectively: -

“13. The credibility of both Ko and Huang is in issue. There is no dispute on the general principles that the Court should apply in assessing the credibility of a witness (see e.g. Progetto Jewellery Co Ltd v Lau Chiu Ying [2020] HKCFI 209 at §§28-31, per DHCJ M K Liu, cited by the Plaintiff). I also found the following summary of principles set out in Northampton Borough Council v Cardoza and others [2019] EWHC 26 (Ch) instructive:

“36. As to the considerations applicable to evaluating evidence, a useful starting point is Goff J’s (as he then was) observation as to resolving conflicts of evidence in Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 LL Rep 1 at p.57

‘… Where there is a conflict of evidence … reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth’.

37. Factors relevant to the evaluation of a witness’s evidence were identified by Lewison J (as he then was) in Painter v Hutchinson [2007] EWHC 758 (Ch) at [3] when addressing the unsatisfactory nature of the defendant’s approach to giving evidence. These included: evasive and argumentative answers, tangential speeches avoiding the question, blaming legal advisers for pleading, disclosure and evidence shortcomings, self-contradiction, internal inconsistency, shifting case, new evidence, and selective disclosure. This was not intended to be an exhaustive list, but it is important and very helpful.

38. A useful recent reminder or guidance on the approach to the evidence of factual witnesses, and expanding on the guidance given by Goff J in The Ocean Frost, was given by Leggatt J (as he then was) in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm). After noting that human memory is fallible and that the process of litigation and preparing for trial tends to interfere further with the reliability of human memory, particularly where a lawyer has had a hand in drafting a witness’s evidence and the witness’s memory has been refreshed by reading documents, Leggatt J concluded that the best approach for a judge to adopt at the trial of a commercial case is to base factual findings on documentary evidence and known or probable facts and the inferences to be drawn therefrom. Witness evidence, written and oral, is not without purpose; but, its principal uses are to subject the documentary record to scrutiny and to evaluate the witness’s motivations, personality and working practices.

39. In similar vein, in the recent case of Freemont (Denbigh) Ltd v Knight Frank LLP [2014] EWHC 3347 (Ch) reference was made to an article written by Bingham J (as he then was) entitled “The Judge as Juror: The Judicial Determination of Factual Issues” published in Current Legal Problems 38 in 1985. Bingham J considered the approach to deciding upon the reliability of a witness’s evidence and regarded the following to be helpful indicators of where the truth lies: the consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred; the internal consistency of a witness’s evidence; and, the consistency of a witness’s evidence with what (s)he has said or deposed on other occasions. Bingham J considered that the credit of a witness in matters not germane to the litigation was of less assistance, and that the demeanour of a witness was on the whole not a reliable pointer to a witness’s honesty.”

14. In Simetra Global Assets Ltd & Another v Ikon Finance Ltd [2019] EWCA Civ 1413, Males LJ of the English Court of Appeal stressed the importance of contemporaneous documents at §48:

"In this regard I would say something about the importance of contemporary documents as a means of getting at the truth, not only of what was going on, but also as to the motivation and state of mind of those concerned. That applies to documents passing between the parties, but with even greater force to a party's internal documents including emails and instant messaging. Those tend to be the documents where a witness's guard is down and their true thoughts are plain to see. Indeed, it has become a commonplace of judgments in commercial cases where there is often extensive disclosure to emphasise the importance of the contemporary documents. Although this cannot be regarded as a rule of law, those documents are generally regarded as far more reliable than the oral evidence of witnesses, still less their demeanour while giving evidence. The classic statement of Robert Goff LJ in The Ocean Frost [1985] 1 Lloyd’s Rep 1 at p.57 is frequently, indeed routinely, cited:

‘Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth. I have been driven to the conclusion that the Judge did not pay sufficient regard to these matters in making his findings of fact in the present case.’”

64.It was held by the Hong Kong Court of Appeal in Esquire (Electronics) Ltd v Hong Kong and Shanghai Banking Corp Ltd [2007] 3 HKLRD 439 at [7] (per Rogers V-P) and [134]-[135] (per Stock JA (as he then was)) that for the events in question that took place a long time ago, contemporaneous documentation is usually of the highest importance.[60] The reason is obvious: Due to unreliability and fallibility of human memory, it may be difficult for witnesses to recall clearly what happened in relation to events which took place a long time ago and this prompts judges to place little if any reliance at all on witnesses’ recollection of events.[61]

ANALYSIS OF THE EVIDENCE

65.Bearing in mind the aforesaid legal principles, I now move on to consider the issues of this case which depend very much on my factual findings to resolve, in particular the differences between the evidence of Ms Fong and D on what happened at P’s admission office on 3 April 2018 and between the evidence of Mr Tong and D on the date of the Patient’s discharge from P, ie 9 May 2019.

66.The evidence of Dr Leung, Ms Chan, Ms Cheung and Ms Mak is not in dispute. Dr Leung’s evidence is centered on the Patient’s health and mental condition when the Patient was admitted to the ICU of P and afterwards during hospitalization. Ms Mak and Ms Cheung’s evidence focuses on P’s pursuit of D for the settlement of the outstanding hospital charges and D’s response to such pursuit. Ms Chan’s evidence hovers over the episode of Madam Chung’s attendance at P’s cashier office and signed on the Admission Record and Agreement on D’s instructions. I find their evidence credible and give full weight to their evidence. The gist of their evidence is reflected in the background of this Judgment. I don’t think I need to repeat their evidence here.

The 1^st and 2^nd Issues

Evidence

67.Ms Fong gave elaborate evidence on what happened between D and her at the admission office on 3 April 2018. The gist of her evidence is as follows:

(a)  Ms Fong was employed by P as customer service officer from 2013 to late 2018. Her duty involved providing admission service to P’s clients and answering P’s clients’ enquiries.

(b)  When Ms Fong first reported to duty at P, she had a “teacher”, an experienced colleague, who supervised and taught her for 3 months before she could work on her own. There was also a training manual which she had read.

(c)  As to admission procedure:

(i)  When a customer arrived at the admission office, Ms Fong would get the patient’s HKID, confirm the patient’s booking and the patient’s personal details in the form (presumably the admission record and agreement), cross check with the patient’s HKID. If all information was correct, she would proceed to explain details such as room charge, bed class, name of doctor and etc. Once everything was confirmed, she would allow the customer to sign on the form.

(ii)  If a patient was unable to do the registration at the admission counter, the patient’s family members, friends and relatives could do the registration on behalf of the patient.

(iii)  If a patient was the one responsible for payment, the patient himself/herself would have to sign because the patient was the one to pay and could not have another person to sign the admission record and agreement. In such a case, Ms Fong would bring the admission record and agreement to the ward for the patient to sign.

(iv)  If a patient had no awareness, lost consciousness and the person who attended the admission procedure had no intention to pay, Ms Fong should inform her supervisor, Mr Tong, and ask for a solution.

(d)  The Patient was admitted to P during peak hours at 1829 hours on 3 April 2018. At that time, there were a lot of people and Ms Fong was very busy at the admission office. The Patient was admitted straight to the ICU and D, at the admission office, attended to the admission procedure assisting the Patient’s admission. This was the first time Ms Fong met D.

(i)  Upon asking, D gave Ms Fong the Patient’s HKID and her HKID for checking. After reading the information typed out in the Admission Record & Agreement, D sought amendment of the Patient’s residence information and the 2^nd contact kin information.

(ii)  After amending and typing out the Admission Record & Agreement, Ms Fong explained to D information relating to the treating doctor, the room charge, the bed class, the bed no. and the amount of deposit to be paid. D said that she understood and that she would be the one to pay. Ms Fong then circled the words “付款人” and asked D to write down her personal details at the section “PAYER PARTICULARS (if not the Patient)” of the Admission Record & Agreement and sign above “付款人” circled.

(iii)  D then filled in her personal details at the section “PAYER PARTICULARS (if not the Patient)” of the Admission Record & Agreement. D, however, failed to sign above “付款人” circled. At that juncture, Ms Fong did not notice that D had not signed above “付款人” but mistakenly thought that D had so signed. Her oversight, as Ms Fong explained, was due to the busy working environment at that time.

(iv)  When Ms Fong asked D to pay the admission deposit, D said that she had not brought with her any credit card but only EPS so she was unable to pay. Ms Fong took out the Deposit Deferral Form, wrote down the date, the amount of the admission deposits, circled guarantor and placed the same on the table facing D so that D could read the content of the same. Ms Fong then explained the content of the Deposit Deferral Form to D. After D said she understood, Ms Fong asked D to sign above the circled “Guarantor” and D so signed. Ms Fong then put 3 “x” at the table captioned “Guarantor personal particulars” and asked D to fill in the particulars thereat. D then filled in the particulars. Ms Fong wrote down the words “家人今天代付” at “Reason of Deferred” because D had told her that “今日會去比錢” (translated as “money would be paid today”). Finally, Ms Fong wrote down “5” at “Triage Cate”.

(v)  According to Ms Fong’s understanding, the payer would be the guarantor. Prior to giving evidence, Ms Fong all along had thought that D had filled in her personal particulars in the table captioned “Guarantor personal particulars”. At that time, she did not read carefully what had been filled in by D.

(vi)  Ms Fong denied that D did not sign above the circled “Guarantor”.

(vii)  Ms Fong also denied that D had told her that she would not sign above “付款人”circled because the Patient would be responsible for her own hospital and medical expenses and that when D asked her whether D needed to amend her personal details at the section “PAYER PARTICULARS (if not the Patient)” of the Admission Record & Agreement, Ms Fong answered in the negative.

(e)  Only 22 days later when Mr Tong asked Ms Fong whether the mark “x” above Patient/Payer in the “PAYMENT PARTICULARS” section of the Admission Record & Agreement was a signature did Ms Fong begin to realize that D had not signed on the Admission Record & Agreement. Ms Fong told Mr Tong that it was not a signature as it was marked by herself. Ms Fong telephoned D but the call was not answered. Upon knowing that D was inside B6 isolation ward with the Patient, Ms Fong went up to the ward with the Admission Record & Agreement for D to sign. Outside the ward, D said for patient’s privacy reason, she would not leave the ward and that she would go to the cashier office to sign the Admission Record & Agreement later. Ms Fong then brought the Admission Record & Agreement to the cashier office and told the staff there that D would come to sign the same.

68.On the Letter of Indemnity, Mr Tong testified the following:

(a)  On 9 May 2018, Mr Tong and one Ms Ip Wai Ling (“Ms Ip”) (from the Accounts Department) went up to the ward and met with D at the nurse station. The reason why Mr Tong went up to meet with D was that P all along had contacted D.

(b)  Mr Tong asked D for her HKID, but D refused to give it to Mr Tong.

(c)  Mr Tong enquired how D would settle the hospital bill of up to HK$967,697 (ie the Outstanding Sum). D told Mr Tong that she needed 1 to 2 months’ time to settle the sum by way of bank transfer to P’s account. Mr Tong then asked D to write down her agreed payment arrangement in the Letter of Indemnity.

(d)  Ms Ip first filled in the upper part of the Letter of Indemnity. D then wrote in the Letter of Indemnity. Whilst D was writing in the middle part of the Letter of Indemnity, Mr Tong told D P’s bank account details for D to write the same in the Letter of Indemnity. D wrote the following in the middle part of the Letter of Indemnity:

“WILL ARRANGE TRANSFER TO BANK ACCOUNT HANG Seng bank [illegible] 366-001212-688 AROUND 1-2 MONTHS 15 July 2018 CAN CONTACT FUNG [illegible] (brother) 2335-0097”

(e)  When Mr Tong asked D to write the name of her brother in a better way, D refused to co-operate.

(f)  D also refused to sign below item 4 of the Letter of Indemnity. When Mr Tong asked D why she did not sign the Letter of Indemnity, D said that the whole hospital bill should be borne by the Patient and asked Mr Tong to seek the Patient to sign the Letter of Indemnity.

(g)  Upon asking, D wrote down some information at the “Signature of the Witness” and signed at the “Name” of the Letter of Indemnity. But Mr Tong did not know whether the information written down related to D or the Patient because D had refused to give him her HKID for checking.

(h)  Mr Tong denied that he asked D to be a witness to the Letter of Indemnity after she refused to sign below item 4 of the Letter of Indemnity.

(i)  Due to D’s uncooperative attitude, Mr Tong spent a lot of time (about 2 hours) asking D to write in the Letter of Indemnity.

(j)  P’s management knew that D was not willing to pay the Outstanding Sum and had discussed it. But Mr Tong was not clear about the result of the discussion. D had stalled payment but had not said personally that she was not willing to pay. Mr Tong did not know when the matter was escalated to the management level.

(k)  Mr Tong denied D asking him for a thumbprint to be taken from the Patient.

69.Mr Tong also testified that he first saw the Admission Record & Agreement on 25 April 2018 and discovered that D had not signed the same. He telephoned D, but D did not answer his call. He also contacted Mr Fung, the 2^nd contact kin mentioned in the Admission Record & Agreement, and Mr Fung had asked D to go to the admission office to sign the Admission Record & Agreement.

70.On these issues, D’s evidence is as follows:

(a)  On 3 April 2018, P had made clear to Ms Fong that the Patient would pay for her own hospital expenses.

(b)  Ms Fong gave D the Admission Record & Agreement, a pre-printed document with the Patient’s personal information and asked D to fill in the blanks with D’s own personal information.

(c)  When D was writing down her information, she realized that the Admission Record & Agreement was misleading since the section “PAYER PARTICULARS (if not the Patient)” did not specify clearly what the payer was supposed to pay for.

(d)  D stopped in the middle of the Admission Record & Agreement and informed Ms Fong that it might not be appropriate for her to put down her personal information therein and to sign in the space where it stated “I hereby guarantee to pay the hospital bill immediately upon presentation, arising from the above patient’s stay in the hospital” as it was the Patient who would be responsible for paying her own personal expenses. Hence, D did not sign the Admission Record & Agreement. Ms Fong nodded to acknowledge what D had said. Ms Fong did not insist that D had to sign at the aforesaid space of the Admission Record & Agreement.

(e)  D asked Ms Fong whether she needed to cross out her personal particulars which she had written down by mistake. Ms Fong indicated that it was not necessary and did not give D the Admission Record & Agreement to make amendment.

(f)  When D was asked to complete the Deposit Deferral Form on behalf of the Patient, she wrote down the name of the Patient as the guarantor and the contact information of the Patient. Ms Fong then read what D had written down and accepted that the Patient was the person to be responsible for paying P. Ms Fong then wrote down the words“家人今天代付”in the Deposit Deferral Form.

(g)  At the time of the Patient’s discharge from the hospital, D refused to sign the Letter of Indemnity because the Patient was the person who should be responsible for settling her own hospital expenses and the Patient was fully capable to make such payment arrangements. D also refused to give P her HKID.

(h)  Under cross examination:

(i)  D agreed that Ms Fong had explained to her the parts of the Admission Record & Agreement which Ms Fong had circled except the circled “付款人”. When Ms Fong asked D to fill in the section “PAYER PARTICULARS (if not the Patient)”, D began to read the Admission Record & Agreement from below upward to the section “PAYER PARTICULARS (if not the Patient)” where she thought it might not be appropriate for her to put down her personal information and told Ms Fong that the Patient would be responsible for paying the money.

(ii)  D said that she first read the big wording in the Admission Record & Agreement, then paragraph by paragraph when she wrote down the information thereat and then the fine print before she signed.

(i)  D denied that she had told Ms Fong that she would be responsible for the Patient’s hospital bill.

(ii)  D agreed that she had signed similar hospital admission documentation before.

(iii)  When asked why she did not ask the Patient to confirm obligation to pay the hospital expenses, D answered that P had not proactively asked her to do so and that the Patient could not sign. That was the reason why she asked Mr Tong on 9 May 2018 whether he could take a thumbprint from the Patient.

(iv)  D said that Ms Fong had not explained the content of the Deposit Deferral Form to her. The Patient being the guarantor, D filled in the Patient’s personal information in the table captioned “Guarantor personal particulars”. D agreed that the signature above the circled “Guarantor” was her signature, but she signed on behalf of the Patient.

(v)  D said that Madam Chung was employed by the Patient as helper and that she asked Madam Chung over the phone to attend cashier office to get documents. D did not know Madam Chung had signed the Admission Record & Agreement.

(vi)  Inasmuch as concerns the Letter of Indemnity, D said the following:

(aa)  that on the date of the Patient’s discharge from the hospital, a male staff approached her, asking her how the Patient would pay for her hospital expenses;

(bb)  that in answer, D told the staff that the Patient would pay for her hospital expenses;

(cc)  that the staff then used 1.5 hour to pressurize D into estimating when the Patient could settle the hospital expenses;

(dd)  that D answered by saying if the Patient recovered, she could do the bank transfer to settle the hospital expenses in 1 to 2 months’ time;

(ee)  that upon asking, D helped the Patient write down the hospital expenses would be settled in 1 to 2 months’ time and suggest 15 July 2018 in the Letter of Indemnity;

(ff)  that D wrote down the Patient’s name, HKID and telephone no. at the “Signature of the Witness” in the Letter of Indemnity;

(gg)  that the signature at the “Name” of the Letter of Indemnity was not her signature;

(hh)  that the staff/Mr Tong asked D whether a thumbprint could be taken from the Patient; and

(ii)  that the staff went away to consult someone, but, on return, he no longer requested to take the Patient’s thumbprint.

(vii)  D agreed that when the Patient was admitted to P on past occasions, it was the Patient who settled the hospital bills notwithstanding that D had signed the documentation.

(viii)  D agreed that although she had agreed to settle the hospital bill, the Patient having passed away without giving her the money and the Patient’s estate having no money, she was unable to settle the hospital bill.

(ix)  The Patient’s brother, Mr Fung, was also elderly and had passed away in 2021.

Findings

71.On balance, I prefer the evidence of Ms Fong and Mr Tong to that of D on the following grounds:

(a)  On a closer scrutiny, D’s version of the communications between the admission staff and her on 3 April 2018, an important plank of D’s defence, was shifting from a passive stance of not being informed that D would be responsible for paying the Patient’s hospital expenses[62] to a positive stance of her stating clearly to the admission staff, ie Ms Fong that the Patient should be the one responsible for settling her own hospital expenses and from the “mutually understood agreement” with no mention of an acknowledgement by the admission staff[63] to now the Mutual Understanding with full acknowledgement by the admission staff.

(b)  D agreed in cross examination that Ms Fong had explained to her the parts of the Admission Record & Agreement which Ms Fong had circled except the circled “付款人”. When Ms Fong asked D to fill in the section “PAYER PARTICULARS (if not the Patient)”, D began to read the Admission Record & Agreement from below upward to the section “PAYER PARTICULARS (if not the Patient)” where she thought it might not be appropriate for her to put down her personal information. It is quite an unusual way of reading an important admission document and there is no evidence that D was deprived of an ample opportunity of reading the Admission Record & Agreement before filling in the information and signing the same.

(c)  When asked why she did not read the Admission Record & Agreement clearly before filling in the information, D said that she had not read every word. This is incredible bearing in mind that D is a highly educated person, an experienced registered pharmacist and has served as a member of the Pharmacy and Poisons Board of Hong Kong Appeals Tribunal.

(d)  On the Admission Record & Agreement, this Court enquired from D whether she would only write “Chang Iris Jacquelin” as her name and never “Iris Chang”. D answered that she had only written “Iris Chang” in letter denoting that she would only use “Iris Chang” in informal context. This was contradicted by the Annual Return[64] where she, in her own handwriting, used “Iris Chang”.

(e)  D at first gave evidence that she signed at the “Name” of the Letter of Indemnity. Later, during cross examination, she retracted her evidence and said that the signature at the “Name” of the Letter of Indemnity was not her signature and that she did not sign the Letter of Indemnity.

(f)  If D had told Ms Fong that the Patient would be responsible for paying her own personal expenses not D herself, Ms Fong, according to the hospital admission procedure, would have gone up to the ward to seek the Patient’s signature or asked her supervisor, Mr Tong, for a solution (if the Patient had no awareness or lost consciousness). But this is not the case here. Neither had D asked P proactively to seek the Patient’s signature or thumbprint to signify the Patient’s agreement to pay her hospital expenses.

(g)  D was the person writing down her personal details under the section “PAYER PARTICULARS (if not the Patient)” after the words “付款人” was circled and explained to her by Ms Fong. It is more likely than not that “付款人” was circled because D told Ms Fong that she would be the one paying. I understand that D in cross examination said that Ms Fong had explained every item circled in the Admission Record & Agreement except the circled “付款人”. I do not accept D’s evidence since it would be very odd for Ms Fong to circle “付款人”without explaining the same.

(h)  Ms Fong’s evidence of her failure to notice that D had not signed the Admission Record & Agreement on 3 April 2018 tallies with the undisputed subsequent conduct of hers to chase D for her signature on the Admission Record & Agreement. If the mutual understanding of Ms Fong and D was that the Patient, not D, would be responsible for the hospital expenses, it would not be necessary for Ms Fong to chase D for her signature on the Admission Record & Agreement. More importantly, not only had D not protested against the need for her to sign the Admission Record & Agreement, but she also asked Madam Chung to attend the cashier office to sign the same.

72.Hence, I find the following:

(a)  Ms Fong had asked D for her HKID and D produced her HKID for Ms Fong to verify her identity.

(b)  When D filled in the Admission Record & Agreement, she read the Admission Record & Agreement carefully and told Ms Fong that she would be responsible for the hospital expenses to be incurred by the Patient. That was the reason why D filled in her personal information under the section “PAYER PARTICULARS (if not the Patient)”.

(c)  Between the sections of “PAYMENT PARTICULARS” and “PAYER PARTICULARS (if not the Patient)” contained a standard body of the agreement, setting out clearly the terms of the Agreement which D fully understood before she wrote down her personal information under the section “PAYER PARTICULARS (if not the Patient)”.

(d)  D had not told Ms Fong that the Patient would be the one to pay for her own hospital and medical expenses incurred.

(e)  There was no Mutual Understanding, ie the mutual understanding between D and the admission staff that D did not agree to pay for the medical expenses of the Patient and that the Patient would be fully responsible for her own hospital expenses.

(f)  Ms Fong failed to notice that D had not signed the Admission Record & Agreement. Had Ms Fong noticed the absence of D’s signature on the date of admission of the Patient, Ms Fong would have asked for D’s signature immediately.

(g)  The Agreement was contained in and/or evidenced by the Admission Record & Agreement.

(h)  The conducts mentioned in para 35(b) hereinabove are unequivocally referrable to the Agreement and evidence the Agreement.

(i)  D had the intention to be legally bound by the Agreement.

(j)  For whatever reason, D stalled paying the hospital bills despite receipt of the hospital bills and chasers.

(k)  Upon discharge of the Patient, D demonstrated her unwillingness to pay the Patient’s hospital expenses and her uncooperative attitude to sign the Letter of Indemnity.

(l)  The Letter of Indemnity was not a draft document which P had prepared with the intention to obtain the thumbprint of the Patient as the person to sign the Letter of Indemnity.

73.Accordingly, I find that P and D has entered into the Agreement as pleaded in P’s Amended Statement of Claim.

The 3^rd Issue

74.By reason of my foregoing findings, D’s case on misrepresentation cannot get off the ground.

75.Even on D’s pleaded case, I have deep reservations about the viability of D’s claim in misrepresentation, be it fraudulent or negligent.

The 4^th and 5^th Issues

76.Likewise, by reason of my foregoing findings, D’s case that she only acted as an agent of the Patient in handling the admission and hospitalization procedures must fail.

77.Even if D was the Patient’s agent in handling the admission and hospitalization procedures, it does not mean that D has done anything expressly or impliedly to negative her personal liability to pay P under the Agreement so found.

CONCLUSION

78.For the reasons given above, P must succeed in its claim against D.

79.Accordingly, judgment be entered for P against D for the sum of HK$967,697.00 with interest at 1% above the HSBC best lending rate from 9 May 2018 to the date of judgment and thereafter at the judgment rate to the date of full payment of the same.

80.As to costs, I shall make an order nisi that D do pay P’s costs of the action on a party and party basis, such costs to be taxed if not agreed with certificate for counsel.

81.The costs order nisi shall be made absolute unless application for variation is made within 14 days from the date of this judgment.

82.Lastly, it remains for me to thank Mr Chong and D for their assistance rendered to this Court.

Mr Alvin Chong, instructed by P T Yeung & Tang, for the Plaintiff

The Defendant appeared in person