Cmk v. Lvsc

FCMC 7556 / 2022

[2026] HKFC 144

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 7556 OF 2022

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REASONS FOR DECISION
( Leave to Expunge Evidence )

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1.The Petitioner and the Respondent will be referred to as the Husband and the Wife respectively.

2.This is the Husband’s application to expunge the Medical Certificate dated 11 May 2026 issued by the Wife’s attending doctor (“the Medical Certificate”) which was exhibited in the Wife’s Affirmation filed on 12 May 2026 (“Section 7 Affirmation”) and to remove the relevant parts of the Wife’s Section 7 Affirmation which made reference to the Medical Certificate.

Background of the Case

3.The parties were married on 14 January 2011.  Petition for Divorce was taken out by the Husband on 16 August 2022 and the decree nisi was granted on 13 June 2023.  There are two children of the family, of whom, joint custody was given to the parties, care and control be granted to the Wife with defined access to the Husband.

4.The Wife had been working as a purchasing agent until 2017, and thereafter, she became a full time housewife to take care of the two sons.  The parties separated in 2018.  Between March 2022 and April 2023, the Wife resumed working as a purchasing agent.  However, she was diagnosed to have suffered breast cancer in April 2023, and has not been working since then.  She has been receiving various operations and treatments thereafter.

5.The trial on ancillary relief will commence on 12 October 2026.  The Wife filed the Section 7 Affirmation on 12 May 2026 in which she exhibited a copy of the Medical Certificate by her attending doctor to show that she suffered from left upper limb lymphoedema. The 1^st and 2^nd paragraphs of the Medical Certificate dealt with the treatments received by the Wife while, in the 3^rd paragraph, the attending doctor said that the illness will prevent the Wife from resuming previous occupational duties and will be unfit for work for one year.  Further, the necessary medical arrangement will impose financial burden on the Wife.

6.The Husband took out Summons on 9 June 2026 for leave to expunge the Medical Certificate and the relevant parts of the Section 7 Affirmation which made reference to the Medical Certificate on the ground that the Medical Certificate is inadmissible since it constitutes medical expert evidence but it is adduced without prior leave of the Court or agreement of the parties.

7.The Wife’s opposition can be summarized as follows:

(a)  The 1^st and 2^nd paragraphs of the Medical Certificate must be admissible since they explained the treatments received and the diagnosis of the treating doctor on the Wife;

(b)  The 3^rd paragraph should be admitted into evidence since this accords with the approach of the Family Court in dealing with a treating doctor’s evidence;

(c)  The 3^rd paragraph, and in fact the entire Medical Certificate, is relied upon not to prove the truth of the contents, but to prove the contents were communicated to the Wife.

8.The Summons was adjourned for substantive argument to be heard together with the 2^nd Pre-trial Review of the ancillary relief proceedings on 10 August 2026.  Having heard submissions of both parties on that day, I delivered my oral decision and dealt with the issue of costs.  I indicated that I would hand down reasons for decision in due course.  This I now do.

The Law

9.Rule 3 of the Matrimonial Causes Rule, Cap 179A, provides that “[s]ubject to the provisions of these rules and of any enactment, the Rules of the High Court (Cap. 4 sub. leg. A) shall apply with the necessary modifications to the commencement of matrimonial proceedings in, and to the practice and procedure in matrimonial proceedings pending in the Court of First Instance or in the District Court.”

10.Order 38, Rule 36 of the Rules of the High Court, Cap 4A, provides that:

“ (1) Except with the leave of the Court or where all parties agree, no expert evidence may be adduced at the trial or hearing of any cause or matter unless the party seeking to adduce the evidence –

(a) has applied to the Court to determine whether a direction should be given under rule 37 or 41 (whichever is appropriate) and has complied with any direction given on the application.

…………

(2)  Nothing in paragraph (1) shall apply to evidence which is permitted to be given by affidavit or shall affect the enforcement under any other provision of these rules (except of Order 45 rule 5) of a direction given under this Part of this Order.”

11.In relation to rule 36(2), the Husband relies on the case of LWF v HCP [2025] HKFC 69 at §27 where HHJ Elaine Liu said that:

“27. It is my view that O38 r36(2) does not operate to permit the use of expert evidence without leave for the trial of the Section 17 Summons even though evidence are directed to be given by affidavit. Neither is it desirable for case management purposes to allow the filing of expert evidence without leave in this circumstance.”.

12.The Wife draws my attention to the case of Hung Sau Fung v Lai Ping Wai [2012] 1 HKLRD 1, in which Bharwaney J said at §§46-48:

“46.  A report of a treating doctor is always admissible to prove the fact that the injured person was receiving treatment, the nature of that treatment, and the opinion and diagnosis of the treating doctor which was communicated to the injured person. These are all matters of fact. Whilst the diagnosis reached and the treatment plan recommended by the treating doctor is the product of his expertise, his diagnosis and treatment plan and their communication to the injured person is a matter of fact. However, the opinions expressed by the treating doctor in his report are not admissible as expert evidence unless leave to admit it for that purpose has been obtained from court. That principle is easy to state but sometimes difficult to apply. It is often a difficult and time-consuming exercise to redact parts of a treating doctor’s report containing his expert opinion, which is admissible only with the leave of court, from those parts of the same report setting out his diagnosis and the opinions he has expressed to his patient, which are always admissible as matters of fact.

47. … Practitioners obtaining reports from treating doctors must ensure that the reports are limited to the diagnosis reached, treatment plan advised, and treatment given by the treating doctor.

48.  The court which receives expert evidence from a medical expert, who was also a treating doctor, must treat that evidence with some caution, bearing in mind the natural tendency of a treating doctor to support his or her diagnosis and treatment plan of the patient.”.

Discussions

1.   Diagnosis and treatment of the treating doctor

13.There is no dispute that the 1^st and 2^nd paragraphs of the Medical Certificate related to the treatments received by and the diagnosis of the treating doctor on the Wife.  The Husband’s primary position is that the entire Medical Certificate should be expunged.  The Husband argues that the treating doctor failed to limit himself to the diagnosis and treatment but chose to go beyond that by expressing conclusionary opinions on the Wife’s functional capacity and her fitness to work in the future.  Moreover, the Husband asks me not to resolve the problem by redacting the opinion part of the Medical Certificate.  The Husband contends that, as mentioned in Hung Sau Fung, it would be a “difficult and time-consuming exercise” to redact the expert opinion parts of the Medical Certificate and it would be impractical to allow part of the Medical Certificate to go to Trial by partially redacting it.

14.Having considered the Medical Certificate and the submission of the parties, I find that the 1^st and 2^nd paragraphs of the Medical Certificate did relate to the diagnosis of and the treatments received by the Wife, and is relevant to the ancillary relief proceedings.  I fail to see why those paragraphs should not be admitted as evidence.

2.   Family Court’s practice

15.The Wife recites three cases decided by the Family Court in Hong Kong to suggest that it has been the practice of the Family Court to admit a treating doctor’s evidence, even where it contains opinions on prognosis, working capacity and future medical needs.  The Court can determine the weight to be attached to those opinions, having regard to other relevant factors and circumstances of the case.

16.The first case is FWY v TYCY & Anor [2022] HKFC 67 at §160, in which HHJ I Wong considered the treating doctor’s opinion on recovery period and working capacity as follows:

“According to his treating doctor, a specialist in Clinical Oncology, the husband completed a series of intensive radical chemo irradiation therapy in the end of November 2021.  He is currently recovering from the acute and late toxicities of treatments.  The recovery period is expected to be about 1 to 2 years.  During this post-treatment phase, depending on his recovery progress, the husband is advised to resume his duties gradually.  Given the safety measures related to his work which involves explosive blasting works, the husband is recommended to avoid heavy duties such as night shift or site works for at least 1 to 2 years from his resumption of duty.  Heavily polluted working environment should be avoided as well.”.

17.The second case relied upon by the Wife is BAM v DJM nee W [2022] HKFC 58 at §113, in which DDJ Peter Barnes considered two medical certificates which contain opinions on working capacity and future medical needs as follows:

“To her 10th Affidavit, W exhibited two medical certificates (dated February 2020) which set out a detailed list of her complaints.  In addition to her ‘thoracic outlet syndrome and chronic pain syndrome’, she has since 2014 had treatment for basal cell carcinoma of the left cheek and melanoma on the right calf the most recent 2 operations in May 2019.  She suffers from chronic migraines, exhaustion/depression and tinnitus.  The first certificate notes that ‘The patient’s complaints have clearly worsened.’  The second goes into more details:

‘Due to the diagnoses mentioned above, [W] is considerably restricted in her daily resilience due to chronic therapy-refractory pain in the left upper extremity and severe migraine attacks and tinnitus.

The illnesses mentioned above do not allow regular professional activity. A re-establishment of the regular professional activity as a pianist/music pedagogue is not to be expected based on the course of the illness.

Heavy household chores cannot be carried out because the patient’s symptoms are clearly progressive. Permanent drug and physical treatment will remain necessary.’”.

18.In respect of the third case relied on by the Wife, in WT v YLC [2018] HKFC 38 at §46, HHJ Melloy considered a letter from the treating doctor containing opinions on working capacity and future medical needs as follows:

“ There was a great deal of argument on the papers and during the trial concerning the wife’s earning capacity going forward. The husband described the wife’s decision not to return to work as a ‘lifestyle choice”. I accept that this was an unfortunate choice of words given the circumstances. Generally speaking, I accept that the wife was advised not to return to her very pressurized lifestyle of old and that she has, for very good reason, decided to make her health her first priority instead. This is not least because she is the primary carer of C, who is still very young. Reference can be made to a letter from one of her treating Dr’s, Dr L, dated the 13 May 2016, which states inter alia as follows:

‘In view of her cancer disease nature, psychological status and the side effects of chemotherapy, radiotherapy and hormonal treatment, I recommended her to adopt a more relaxing life style with family support which will be favourable for her recovery and rehabilitation. Therefore, she is not recommended to rejoin the workforce, at least in the near future, as it is too stressful for her to work. A stressful job with long working hours and frequent travelling is not suitable for her health now. She is also recommended to be under close monitoring by me and the oncologist at least every 3-4 months for her subsequent disease progress and possible recurrence of cancer.’”.

19.The Wife submits that adopting a consistent approach, the Medical Certificate should be admitted into evidence, with the weight to be determined at trial.

20.With respect, I do not agree to the Wife’s submissions that the Family Court has a general approach of admitting a treating doctor’s evidence, even where it contains opinions on prognosis, working capacity and future medical needs as alleged.  If the Wife’s argument were correct, it goes against the requirement under Order 38 Rule 36(1) of the Rules of the High Court which applies to the matrimonial proceedings with necessary modifications by virtue of Rule 3 of the Matrimonial Causes Rule.

21.Each case must be considered against its own facts and background.  I agree with the Husband’s submissions that the cases referred to by the Wife did not show that the admissibility of the treating doctor’s evidence was formally challenged in the respective cases.  Those cases cannot be regarded as authority to show that the treating doctor’s opinion evidence on future working capacity and ability to resume previous work could be automatically admissible irrespective of the requirement under Order 38 Rule 36(1) of the Rules of the High Court.

22.The Husband contends that he will suffer prejudice by the admission of the Medical Certificate as evidence since he is unable to cross-examine the attending doctor thereon.  It is counter-argued by the Wife that the Husband may issue a subpoena against the treating doctor for cross examination at the trial.  I think the real prejudice suffered by the Husband does not lie in the right to issue a subpoena, but the fact that the opinion was given by the attending doctor of the Wife, not a single joint expert properly appointed either by the agreement of the parties or by the Court under the established procedure.  The Husband does not have the opportunity to have his own expert to assist him even if he has the chance to cross examine.  I am not saying that expert direction has to be applied for in each and every case where the future working capacity of a party is disputed in ancillary relief proceeding.  All depends on the circumstances of each individual case and the real issue between the parties. After all, the Court has to have regard to all the circumstances including the factors listed in section 7 of the Matrimonial Proceedings and Property Ordinance, Cap 192, to make a decision.  

3.   The contents were communicated to the Wife

23.The Wife submits that at the ancillary relief trial, it is open to the Husband to challenge, and for the Court to query, why the Wife has not engaged in employment since April 2023.  The Wife argues that it is important for her to adduce the Medical Certificate so as to prove that the contents thereof have been communicated to the Wife such that she can rely on them to establish a reasonable excuse for her not to look for job.  Hence, as submitted by the Wife, the Medical Certificate is not adduced to prove the truth of the contents, but to prove the fact that they were communicated to her.

24.I find the Wife’s argument misconceived.  There is no issue as to whether the attending doctor’s opinions were communicated to the Wife.  That is not a real issue in the ancillary relief proceedings.  Whether or not the opinion was “communicated” to the Wife is irrelevant unless she relies on the truth of the contents of the opinion.

25.The Wife’s argument that the Medical Certificate could provide a “reasonable excuse” for her not to find a job is also misconceived.  I agree with the Husband that a “reasonable excuse” must be assessed objectively by reference to the Wife’s actual medical condition, and not by reference to what she was told.  Moreover, by putting forward the so-called “reasonable excuse” argument, the Wife is in effect asking the Court to look into the contents of the opinion given by the attending doctor, not just whether the contents were communicated.

4.   The 3^rd paragraph of the Medical Certificate

26.The attending doctor commented that the future medical requirements are likely to impose financial burden on the Wife.  At the hearing, Counsel for the Wife conceded that this sentence goes outside the scope of what the attending doctor can say, and the sentence should be redacted.

27.I consider that the sentences concerning the Wife’s ability to return to the previous job and whether the Wife could be fit for work in future are expert evidence and should be redacted as well.

28.Subject to the above, the 3^rd paragraph of the Medical Certificate can be admitted as evidence.

Order

29.Having considered all the circumstances, I am of the view that the following sentence from the 3^rd paragraph of the Medical Certificate should be redacted:

(a)  “…which significantly limits her functional capacity and prevents her from resuming her previous occupational duties.”;

(b)  “These necessary medical requirements are likely to impose a considerable financial burden.”; and

(c)  “From a medical standpoint, Ms XXX is considered unfit for work for a period of one year.”.

30.I also make an order in terms of paragraph 2(a) of the Summons save and except the last sentence in Chinese should be retained.

31.The Wife’s Section 7 Affirmation filed on 12 May 2026 be expunged from the Court file and the Wife shall file and serve a fresh affirmation with the appropriate redaction within 14 days from the date of the hearing.

Costs

32.The Husband asks for costs of the Summons while the Wife suggests that there shall be no order as to costs.

33.Costs are a matter of wide discretion for the Court, and should be exercised in accordance with principles and with a view to reality and justice.  In the exercise of its discretion when making an order as to the costs of or incidental to any interlocutory proceedings, the Court may order the costs to follow the event or make such other order as it sees fit.  Apart from the general principle that costs should follow the event, the Court will also identify who is the real successful party and whether the successful party has raised any unreasonable issues.

34.In the present case, the Husband’s primary position of removing the entire Medical Certificate has not been accepted by the Court, although he is successful in redacting certain paragraphs from the Medical Certificate concerning expert evidence.  The 1^st and 2^nd paragraphs of the Medical Certificate are clearly relevant to the ancillary relief proceedings and should be admissible.  The Husband’s fall-back position is that the entire 3^rd paragraph should be removed.  Eventually, both positions are not accepted by the Court.

35.On question of costs, the Husband informed the Court that the Solicitors for the Husband have written to the Wife’s solicitors before the substantive hearing asking them to provide a draft of the suggested redaction of the Medical Certificate for their consideration, but the Wife refused.  Counsel for the Husband asked for leave to produce a copy of the letter to the Court on the question of costs, and I refused at the hearing.  This is not a situation where the Husband has positively proposed a draft of the suggested redaction for the Wife’s consideration but the Wife unreasonably refused the proposal.  I do not think that the letter could assist the Husband any further on costs.

36.Having considered all the circumstances, I am of the view that it is appropriate for the Wife to pay to the Husband half of the costs of the Summons with certificate for counsel to be taxed if not agreed.  I also direct that the Husband’s own costs be taxed in accordance with the Legal Aid Regulations.

Ms. Cyndi Ho instructed by C.Y. Chan & Co., assigned by Director of Legal Aid, for the Petitioner

Mr. Cyrus Lau instructed by Keith Lam Lau & Chan for the Respondent