LEUNG TAK HING v. WU ANTHONY

CAMP 62/2017

[2018] HKCA 28

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 62 OF 2017

(ON AN INTENDED APPEAL FROM HCPI NO 1327 OF 2016)

__________________________

__________________________

__________________

JUDGMENT

__________________

Hon Lam VP (giving the Judgment of the Court):

1.  The intended appeal is an appeal against the exercise of the case management discretion by the judge. As Mr Chan (appeared on behalf of the Defendant)acknowledged, there is a very high threshold for the Court of Appeal will not intervene with such decision unless the judge was plainly wrong or erred in principle or understanding of the evidence.

2.  In essence, the intended appeal was to be argued primarily by reference to the “Guidelines for the Instruction of medical experts from overseas in family cases” promulgated in England.

3.  Irrespective of the applicability of such guidelines in England, they have no force of law in Hong Kong.  On the materials brought to our attention, such guidelines were promulgated and applied in England only in family cases, not by way of general application.

4.  The choice of expert witness in a medical negligence case in Hong Kong is not analogous to a choice of medical expert in family cases in England. It is not possible to suggest that the judge erred in not adopting the approach in such guidelines.

5.  In the context of medical negligence litigation in Hong Kong, as presently advised, we are not persuaded that our courts should adopt the approach in such guidelines.

6.  In any event, this is not the proper occasion to review the practice of engagement of overseas expert for litigation in Hong Kong.

7.  The judge was perfectly entitled to take account of the potential impact on the order of a speedy trial in the circumstances of this case (where the Plaintiff had a short life expectancy) if the Plaintiff is required to instruct another expert.

8.  The intended appeal has no prospect of success and we refuse to grant leave.

9.  The Plaintiff asked for costs on indemnity basis.  Having considered the statement of costs of the Plaintiff and having heard submissions of Mr. Sakhrani (for the Plaintiff) and Mr. Chan, we award the Plaintiff costs on indemnity basis.  Such costs are fixed at $150,000, to be paid by the Defendant to the Plaintiff forthwith.