Kwan Yuen Mei v. Lau Sui Yuen

HCPI 569/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 569 OF 2009

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Before: Deputy High Court Judge Lok in Chambers

Date of Hearing: 14 October 2014

Date of Decisions: 14 October 2014

Date of Reasons for Decisions: 16 October 2014

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REASONS FOR DECISIONS

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1.In the hearing on 14 October 2014, I dismiss a few summonses taken out by the plaintiff. I now give my reasons.

2.The hearing is conducted in Chinese.  However, since all the relevant documents submitted by the parties are in English, I decide to hand down these Reasons for Decisions in English.

3.The background of this case has been set out in my Decision handed down earlier on 9 October 2012 (“the Decision”), and I do not want to repeat the same here.

4.The effect of the Decision is that the plaintiff is allowed to maintain the claim for assault and battery against the treating doctor, the nurses and the Hospital Authority for carrying out the urine test on the deceased (the plaintiff’s mother) without the consent of the deceased or her family members.  However, all the claims for medical negligence were struck out.

5.In the Decision, I had allowed the plaintiff to file and serve a Re-Amended Statement of Claim against the defendants in terms of the plaintiff’s revised Re-Amended Statement of Claim lodged on 15 September 2011.  Unfortunately, the plaintiff ignored the Decision.  In all the subsequent pleadings sought to be filed by the plaintiff, the plaintiff either included the claim for medical negligence in the pleadings, or added some new materials in the pleadings which are contrary to the Decision itself.  Hence, the proceedings have been delayed and there were quite a few unnecessary hearings before me.  On 19 April 2013, I gave permission to the plaintiff to file another draft Statement of Claim approved by the court within 14 days.  Again, the plaintiff ignored the court’s decision and sought to file pleadings with different versions.  Up to now, the plaintiff has not complied with the court’s order in filing an approved version of the Statement of Claim, though the plaintiff finally indicates her willingness to do so in the hearing.

6.There are a few summonses returnable before me in the hearing.  The defendants’ applications are basically for a RAO against the plaintiff in the 2 respective actions and for an order to strike out the unapproved version of the Statement of Claim filed by the plaintiff.  In the hearing, Mr Wong, counsel for the defendants, indicates to the court that the defendants will take out new applications against the plaintiff to strike out her claims on the ground that she has repeatedly failed to file an approved version of the Statement of Claim or to pay for the costs previously ordered by the court.  In view of such new development, I agree to adjourn the defendants’ summonses and the plaintiff’s summonses both dated 27 August 2013 (applications to strike out the defendants’ RAO applications) to be heard together with the defendants’ new applications.

7.I then only have to deal with the plaintiff’s outstanding summonses returnable before me in the hearing.

8.The first one is the plaintiff’s summons dated 9 April 2013 in HCPI 570 of 2009 to appeal against the costs order made at the hearing before Master Li on 27 December 2012.  On 28 January 2013, I had already dismissed the plaintiff’s appeal against the order made by Master Li. In such circumstances, the plaintiff should not be allowed to lodge a fresh appeal against the costs order alone, and I therefore dismiss the plaintiff’s application with costs.

9.Then I come to the plaintiff’s 2 summonses dated 10 April 2013 applying for leave to withdraw paragraph 36(v) of the Decision. Similar applications had been made by the plaintiff by way of 2 summonses dated 7 January 2013.  On 28 January 2013, I dismissed such similar applications by the plaintiff.  As the plaintiff is seeking to re-litigate the same applications before the court and there is absolutely no merit in the plaintiff’s applications since the plaintiff is asking the court to vary its own decision after the relevant orders have been sealed, I dismiss the plaintiff’s 2 summonses dated 10 April 2013 with costs.

10.I then turn to the plaintiff’s summonses dated 26 April 2013.  In these summonses, the plaintiff seeks to recover damages against the defendants for taking steps to recover the costs ordered to be paid by the plaintiff.  Again, there is no merit in these applications.  It was the court who made these costs orders in favour of the defendants, and there is simply no valid cause of action against the defendants who lawfully enforce the costs orders made by the court in their favour.  I therefore dismiss the applications with costs.

11.Lastly, the plaintiff took out 2 summonses dated 20 August 2013 for leave to appeal against all the orders the court made from 2 September 2011 to 7 August 2013.

12.First, it is not required to apply for leave to appeal against the Decision I made on 9 October 2012 striking out the plaintiff’s claims based on medical negligence.  By virtue of the provisions in O 59 rr 21(1)(a) and 21(2)(b) of RHC, no leave is required to appeal against an order striking out a pleading or part of a pleading.  Hence, the plaintiff’s applications are unnecessary.

13.For the other orders, the applications for leave are hopelessly out of time, and the plaintiff has not provided any explanation to justify the delay in making the leave applications.  Further, it was only because of the repeated refusal of the plaintiff to file an approved version of the Statement of Claim that the court had to make a lot of adverse decisions and costs orders against her.  There is simply no merit in these appeals.  I therefore dismiss the summonses dated 20 August 2013 with costs.

14.These are the reasons for the decisions I make in the hearing.

The plaintiff in HCPI 569 & 570/2009, in person, present

Mr Brian M W Wong, instructed by P C Woo & Co, for the defendant in HCPI 569/2009 and the 2^nd and 5^th defendants in HCPI 570/2009