Hong Kong Baptist Hospital v. Chang Iris Jacqueline

DCCJ 378/2019

[2026] HKDC 1767

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 378 OF 2091

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BETWEEN

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DECISION

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INTRODUCTION

1.On 30 January 2026, this Court handed down a monetary judgment in favour of the Plaintiff (“P”) against the Defendant (“D”) for the sum of HK$967,697.00, ie the outstanding balance of hospital and medical expenses incurred by D’s late mother when she was admitted to P for medical treatment from 3 April to 9 May 2018. (the “Judgment”). In the Judgment, this Court made a costs order nisi that D should 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 (the “Costs Order”)

2.On 12 February 2026, D took out a summons, applying for variation of the Costs Order (the “Costs Summons”). It appears that D asked for her liability to pay P’s costs to be reduced by 50%. On the same day, D filed a 1-page affirmation, purportedly in support of the Costs Summons, but deposing to nothing which can in any way be described as assisting her application.

3.Later, on 26 February 2026, D took out another summons, seeking leave to appeal against the Judgment (the “Leave Summons”). In support of the Leave Summons, D made an affirmation on the same day, exhibiting a 4-page document compiled by D (the “4-page Document”), the Admission Record & Agreement, the Deposit Deferral Form and the Patient’s Charter (the “26/2/2026 Affirmation”).

4.On 2 April 2026, I gave directions for paper disposal of the Costs Summons and the Leave Summons (the “Directions”). Pursuant to the Directions, P filed the Affirmation of Tong Yan Keung in opposition to the Leave Summons on 20 April 2026, lodged its Skeleton Submission in opposition to the Leave Summons (the “P’s Leave Submission”) and another Skeleton Submission in opposition to the Costs Summons on 16 June 2026. D, however, has not taken any further steps under the Directions.

5.Initially, I indicated in the Directions that two decisions will be handed down, one under each Summons. Since the Costs Summons is utterly unsubstantiated, I can dispose of the Costs Summons swiftly and the Costs Summons does not warrant a separate decision. Accordingly, I shall consolidate my decisions on the Costs Summons and the Leave Summons to form this conjoint Decision.

6.Unless otherwise stated, I shall adopt herein the abbreviations used in the Judgment.

THE APPLICABLE LEGAL PRINCIPLES

7.The test for granting leave to appeal to the Court of Appeal from a judgment, order or decision of a judge, as set out in section 63A(2) of the District Court Ordinance, Cap 336, is as follows:

“(2) Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that –

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

8.The party that seeks to appeal bears the burden of satisfying the Court that his or her appeal has a reasonable prospect of success. This means an appeal with prospects that are more than fanciful but which do not need to be shown to be probable.[1]

9.To meet the “reasonable prospect of success” test, the applicant for leave to appeal is required to show more than just an arguable case, but an appeal that has merits and ought to be heard, although the applicant does not have to demonstrate that the appeal will probably succeed.[2]

10.It is well settled that in respect of findings of fact, the appellate court can only intervene when it is satisfied that the findings by the first instance/primary[3] judge is plainly wrong, see Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336. In an appeal, the appellate court will focus on the question whether the primary judge has fallen in palpable errors which could give rise to grounds for intervention by the appellate court. The appellate court is required to identify a mistake in the judge’s evaluation of the evidence that is sufficiently material to undermine his conclusions. The rare cases of intervention are: where the conclusion was one (a) which there was no evidence to support, (b) which was based on a misunderstanding of the evidence, or (c) which no reasonable judge could have reached.[4]

11.Moreover, in秦錦釗 v 香港特別行政區 [2018] HKCA 167 at §8, Kwan JA (as she then was) held that, in light of the function of the Court of Appeal, it would be futile for an appellant to rehearse the contentions that were rejected by the first instance judge. Instead of doing so, the appellant should focus on the first instance judge’s reasoning and pinpoint the error in respect thereof.

THE INTENDED GROUNDS OF APPEAL

12.D’s argument/intended grounds of appeal can be found in the 4-page Document. In a broad outline, D complained the following:

(a) The Judgment was not just and fair as it overlooked facts and evidence presented to the Court and during cross examination of P’s witnesses:

(i) The finding that D had the intention to pay for all the hospital expenses incurred by the Patient was not fair and solid and was unsubstantiated; and

(ii) D disagreed with the finding that D’s signature was not a necessary item in the Admission Record & Agreement to order D to be responsible for paying all the hospital expenses of the Patient;

(collectively as the “Intended Ground (1)”)

(b) The Court failed to consider P’s Patient’s Charter which provided for the “Right to have a Fair Contract”, “Right to have a Fair Contracting Process”, “Right of Choice” and “Right of Informed Consent” which D was allegedly entitled to. (the “Intended Ground (2)”)

The Intended Ground (1)

13.To argue on the Intended Ground (1), D focused on the following:

(a) the Admission Record & Agreement and its terms;

(b) the fact that she had not signed the Admission Record & Agreement;

(c) the Deposit Deferral Form;

(d) her explanation that the “PAYER PARTICULARS (if not the Patient)” she filled in could possibly refer to the payer of the admission deposit of HK$50,000; and

(e) Ms Fong did not tell D that D had to be the person to guarantee to pay for all the expenses of the Patient.

14.The Intended Ground (1) is interwoven with D’s version of the case and is only another attempt by D to rehearse the contentions that were rejected by the Court.

15.The Court has, inter alia, summarised D’s case[5], identified the issues[6], referred to the relevant legal principles[7], summarised the evidence given by Ms Fong, Mr Tong and D[8], stated the reasons why the Court preferred the evidence of Ms Fong and Mr Tong to that of D[9] and finally come to the Court’s findings of facts at paras 72 and 73 of the Judgment.

16.The fact that D had not signed the Admission Record & Agreement is only a piece of evidence in favour of D’s case, but it is not conclusive.

17.It is trite that 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 and that the signatures are evidence and no doubt the best evidence of what had been agreed, but they are not themselves conditions of the agreement.[10] At the end of the day, the relevant question is whether, upon a consideration of what was communicated between P (through its staff) and D by words or conduct and as a matter of objective analysis, P and D intended to create legal relations and entered into the Agreement as defined in para 34 of the Judgment.

18.Materially in this case are the following pieces of evidence which the Court has accepted:

(a) After amending and typing out the Admission Record & Agreement, Ms Fong explained to D relevant admission details. Thereafter, D said that she understood and that she would be the one to pay. Ms Fong then circled the words “付款人” (not “病人” in juxtaposition with “付款人” for selection) 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.

(b) D then completed her own personal details under the section of “PAYER PARTICULARS (if not the Patient)” but omitted to sign above “付款人” circled.

(c) 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 “擔保人” instead of “病人” 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 “擔保人” 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.

19.Ms Fong’s conduct of circling the words “付款人” instead of “病人” under the “PAYMENT PARTICULARS” section must be the result of the direct instruction of D telling Ms Fong that she would be the one responsible for payment. The purpose of requiring D to complete “PAYER PARTICULARS (if not the Patient)” is plain. This is reinforced by Ms Fong circling “擔保人” instead of “病人” in the Deposit Deferral Form and immediately thereafter D signing above it.

20.All in all, the weight of evidence which the Court has accepted is against D. More importantly, D fails to pinpoint the error which the Court has fallen into so as to give rise to grounds for intervention by the Appellate Court.

21.The Intended Ground (1) has no reasonable prospect of success.

The Intended Ground (2)

22.D referred to the Patient Charter exhibited to the 26/2/2026 Affirmation. The source of the Patient Charter is unknown, and D has not pleaded to rely on the Patient Charter in her Defence. In fact, D has never raised or availed her of the Patient Charter at trial. D only raised the Patient Charter for the first time at the leave stage. In other words, the Patient Charter is a piece of new evidence and any argument arising from the Patient Charter is only sustainable on the Appellate Court giving leave to admit the Patient Charter as new evidence.

23.As stated in Man Lin Heung, The Administratrix of the Estate of Man Kwai Yin also known as Man Kwai Yin v 梁根林 [2019] HKCA 846 at footnote 1, an application for leave to adduce new evidence for an appeal cannot be entertained until after leave to appeal has been granted. A party may however rely on the proposed new evidence in support of his application for leave to appeal if he can demonstrate that it is reasonably arguable that leave to adduce such evidence would be granted by reference to the criteria in Ladd v Marshall [1954] 1 WLR 1489 at 1491.[11]

24.The three conditions for determining whether new evidence should be admitted for the intended appeal are as follows:

(a) the evidence could not have been obtained with reasonable diligence for use at the hearing below;

(b) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and

(c) the evidence must be such as is presumably to be believed or it must be apparently credible, though it need not be incontrovertible.

25.All three conditions must be satisfied for the new evidence to be admitted on appeal. D has not even begun to show how it is reasonably arguable that the aforesaid 3 conditions are satisfied here.

26.The Intended Ground (2) is wholly devoid of merits and has no reasonable prospect of success.

CONCLUSION

27.By reason of the aforesaid, D fails to establish that her intended grounds of appeal has a reasonable prospect of success or that there is some other reason in the interests of justice that leave of appeal should be granted. Accordingly, I dismiss the Leave Summons. There is no reason why costs should not follow the event. D shall pay P the costs of and occasioned by the Leave Summons on a party and party basis (with certificate for counsel), to be summarily assessed, if not agreed.

28.As I have said, I can dispose of the Costs Summons swiftly in this Decision. The Costs Summons is not substantiated by even an iota of argument. The Costs Order is the manifestation of the general rule that costs should follow the event unless there are circumstances justifying the exceptional course of such displacement[12] or where it would be unjust to follow the normal rule[13]. Accordingly, I also dismiss the Costs Summons and D shall pay P the costs of and occasioned by the Costs Summons on an indemnity basis, to be summarily assessed, if not agreed.

29.The costs orders made in paras 27 and 28 hereinabove are nisi orders and shall be made absolute unless application for variation is made within 14 days from the date of this Decision.

30.If no party applies for variation of the aforesaid costs orders nisi within the aforesaid 14-day period, P shall lodge and serve its Statement of Costs (limited to 4 pages) within 14 days from the expiry of the aforesaid 14-day period and D shall lodge and serve any objections to P’s Statement of Costs (limited to 4 pages) within 7 days thereafter for summary assessment by this Court on paper.

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

The Defendant acting in person