POON HOI KAN v. POON HOI WING

HCA 497/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 497 OF 2015

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D E C I S I O N

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1.  This is a very late application for leave to adduce expert evidence made after the pre-trial review which was held on 8 August 2017. The summons was taken out three days later. The trial will commence on 9 October 2017.

2.  For a start, the summons is poorly drafted because:

(a) It does not put down the question for the expert to give an opinion on;

(b) It seeks leave to adduce the oral evidence of Dr Lau Man-yee and Dr Chan Hoi-yee who were treating doctors of the deceased and were not “independent” within the meaning of Order 36 rules 36 and 37, or Order 40 rule 1.  It is in this hearing that the Court is first told that the plaintiff intends to call a psychiatrist;

(c) It appears that the medical records of these two doctors have already been included in the PTR bundle and there appears to be no objections from the defendant’s side as to admissibility and content, but still the plaintiff wants to seek to adduce oral evidence from these two doctors as supplement. 

3.  In this hearing, Mr Yim, counsel for the plaintiff, said that on second thought they may not need the oral evidence, but would rely on Order 40 rule 1 of the Rules of the High Court to invite the Court to appoint an independent expert to give opinion on one issue, ie whether the deceased had the requisite mental capacity at the material time.

4.  I believe this meant whether she had the mental capacity to give away the taxi on the date as she did.  This application under Order 40 rule 1 faces the same difficulty.  The Court is not even given the names of the psychiatrists from which to choose one expert.  There have been no attempts before today from the plaintiff to seek the consent of the defendant to agree upon an expert. 

5.  More importantly, adducing expert reports may cause delay and disruption to the trial date.  Being a milestone date, the trial date is not moveable unless exceptional circumstances can be shown.

6.  The supporting affidavit of the plaintiff did not explain why he only took out this application for expert directions now. The reports from the two doctors had in fact been disclosed to the other side on about 9 March 2016, ie 17 months ago.  The plaintiff has not attempted to explain why in those 17 months no attempt has been made, for example, to the Master at a case management summons or case management meeting, for expert directions. 

7.  The supporting affirmation of the plaintiff merely states that upon advice, he has changed his mind and would like to seek leave from the Court to adduce expert evidence.  The late advice, if any, or change of mind, are not good reasons for the Court to exercise its discretion at this late stage to give expert directions.

8.  There is now less than three months before the trial.  Granting the expert directions may lead to adjournment of the trial which in itself may be a prejudice.

9.  On top of that, the defendant says that there has been lis pendens registered against his personal property.  There would be continued prejudice to him if the trial were adjourned. 

10.  Taking all circumstances into account, I see no reason for exercising my discretion to give leave to adduce the expert evidence.  I therefore dismiss the summons. 

(Discussion re costs)

11.  I agree with the submission of Mr Wong.  In this case, the summons was taken out late and was not carefully thought out.  The defendant’s side should not be troubled with the application at all. Considering all the circumstances, I am of the view that justice demands that the costs should be on indemnity basis and I so order.  I award the sum of $35,000 to be paid by the plaintiff to the defendant.