NEW WELL MASTER CO LTD (Formerly known as WELL MASTER CO LTD) v. TIDJAN ANANTO, by ANDREAS ANANTO his guardian ad litem

HCA 558/2015

[2021] HKCFI 122

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 558 OF 2015

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BETWEEN

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2^ND R U L I N G

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1.  The parties have come before me. I refer to the Decision I gave on 16 September 2020[1].

2.  Before me are one summons each from both parties primarily for leave to file hearsay notices out of time so that, in the light of the medical conditions of Gunawan Gunadi (“GG”) and D, their witness statements could be adduced during the trial due to start next Monday as hearsay.

3.  I have considered the facts and the medical evidence in front of me.  I note, in particular:

(a) in respect of D:

(i) the 1^st report of 13 November 2020 of Dr Riadi recording that D scored 8 out of 30 on a MMSE test conducted on D on 12 November 2020 by Dr Rimawati;

(ii) the Supplemental Report of 2 December 2020 by Dr Riadi concluding that D suffered from major neurocognitive disorder;

(iii) the 2^nd Supplemental Report of 21 December 2020 by Dr Riadi expressing the opinion that D “is of an unsound mind who appears to be incapable of receiving just impressions of the facts respecting which they are examined or relating them truly”; and

(iv) that despite liberty having been granted by this Court, P has not expressed any request to examine D;

(b) in respect of GG:

(i) the report of Dr Tsang Kin Lun of 15 December 2020 expressing the opinion inter alia that GG has been suffering from moderately severe Alzheimer’s disease dementia for about 2 years, and that GG is of unsound mind and appears to be incapable of receiving just impressions of the facts respecting which he is to be examined or of relating them truly; and

(ii) the report of Dr Hung Bing Kei of 6 January 2020, Dr Hung being the specialist psychiatrist D engaged to examine GG, expressing the opinion that:

(1) whilst GG during the examination was able to answer many of the questions posed to him, there were other questions which he was not able to answer;

(2) GG’s performance is consistent with Alzheimer’s Disease of a mild to moderate level of severity;

(3) GG is somewhere along the continuum between “clearly sound” and “clearly unsound”.

4.  Given the above matters and evidence, and having considered Daimler AG v Leiduck, unrep, HCA 4089/1994, 2 December 2016 cited to me, I hold that the evidence is sufficient to establish that both GG and D are incompetent to give evidence.  I exercise my discretion and grant parties leaves to file the hearsay notices they respectively seek to file in order to adduce as hearsay the witness statements which GG and D have respectively filed for the purpose of these proceedings.  In my view, and having considered Lily Cheung v Cheung Wai Kwok [2014] 6 HKC 155 at §§55-67, excluding those statements will stifle both parties’ cases, and would be prejudicial to the interests of justice.

5.  I make an order in terms of §2 of D’s Summons.

6.  I make an order in terms of §§3, 4, 5 and 6 of P’s Summons.

7.  Costs of and occasioned by the Summonses, including all incurred for the purpose of paper disposal of the same and on medical examinations, be in the cause.