TAO SHEN JONG v. YUNG SAU LAN SHIRLEY

HCAP 10/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 10 OF 2010

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D E C I S I O N

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1. This is a decision on the costs of an application by the plaintiff for leave for Miss C, a witness of the plaintiff, to give evidence via video link from Los Angeles of the USA.

2. This is an action by the plaintiff for grant of probate in solemn form of the will of his deceased father.  The defendant is the former second wife of the deceased.  The witness, Miss C, is an attorney of the State Bar of California.  She will give evidence at the trial on the execution of the will by the deceased.  Both sides regard her as an important witness.  The trial will take place on 14 January 2014.

3. To start with, I would reiterate that the normal mode of giving evidence before this court is for the witness to be present in the courtroom and be examined and cross-examined by counsel and for his demeanour to be observed by the trial judge.  To give evidence via video link is an exception and is only granted as an indulgence to the applicant (see Chow Kam Fai [2004] 2 HKLRD 260 at paragraphs 17 to 18, Mahajan v HCL Technologies Limited [2010] 5 HKLRD 119 at paragraph 7 per Rodgers VP and Daimler AG v Leiduck [2013] 2 HKLRD 822 at paragraph 11 per Barma JA).  Save in the case of non-controversial evidence or expert evidence of a technical nature, an applicant must establish a good ground for the exercise of the indulgence by the court.

4. This application was launched on 22 July 2013. It was supported by two affidavits of Miss C.  In her first affidavit, she said she had a longstanding phobia of flying.  She referred to her phobia having grown worse and she had consulted a psychologist in 2007 on it.  She also said that she would avoid any flight of more than six hours.  The flight from Los Angeles to Hong Kong would take some 15 hours.  She also produced a medical certificate dated 3 April 2013 from her primary care physician, Dr M. Ma, and a certificate dated 15 April 2013 from her clinical psychologist, Dr L. Kusens. Dr Ma’s certificate reads:

“I am the primary care physician for Miss [C]. She has asked that I write a statement to confirm that she has flight anxiety and has required medications in the past for this condition. This is accurate and it would be advisable to limit any unnecessary air travel.”

Dr Kusens’ certificate reads:

“Miss [C] was seen in my office in 2007 for a course of psychological treatment in association with her significant fear of flying.”

Miss C also said she needed to attend to her son every day and her father was suffering from stage 4 lung cancer, therefore she did not want to fly to Hong Kong to give evidence.

5. In response to a query by the defendant’s solicitors, Miss C made a second affidavit deposing to the number of flights she had taken since 2007 and whether she had additional medical records on her flying phobia.  She said she had taken no more than 11 round trip flights since her return flight in 2007.  That means she had taken no more than 22 flights since then.  She further said that the great majority of these flights were for non-leisure family and/or personal purpose (like visiting a severely ailing family member or attending a funeral) or were essential work related (like a required in-person meeting with the Inland Revenue Service) and that none of the flights took more than six hours.  Furthermore, in a five hour flight in 2009 she was so distressed that she had to be removed from the plane by a wheelchair.  But she could provide no more medical certificates.

6. The application was fixed to be heard on 28 August.  On 27 August I made the following direction:

“In the light of the brevity of the two medical reports and that the trial will only commence on 14 January 2014, the parties are asked to consider if it is feasible for up-to-date medical reports or a joint medical report to be obtained on Miss [C’s] alleged flying anxiety/phobia and for the application for evidence via video link to be adjourned to a date in late October or early November 2013.”

The plaintiff acceded to the invitation in the direction.  The defendant reluctantly agreed, but asked for the costs of the hearing on 28 August. When I was to order costs on 28 August against the plaintiff, Mr Paul Shieh SC for the plaintiff objected.  I then offered Mr Shieh the opportunity to argue the application there and then instead of adjourning it for up-to-date medical reports, but Mr Shieh declined my offer.  I then ordered costs of that day in favour of the defendant.

7. I would also mention that in the course of the discussion on up-to-date medical reports, I suggested to the parties to obtain a joint report.  I also stressed to the plaintiff the importance of giving an opportunity for the defendant’s expert to examine Miss C.

8. After the application was adjourned, the solicitors for the defendant wrote on 30 August to seek an agreement from the plaintiff’s solicitors to prepare a joint report on Miss C’s alleged flight phobia.  The defendant’s solicitors also said that they would be in a position to provide a shortlist of expert candidates once there was agreement on the joint report. 

9. The plaintiff’s solicitors replied on 3 September that Miss C was not agreeable to the idea of obtaining a joint medical report, but the plaintiff’s solicitors would make further inquiry with Miss C to ascertain what she was prepared to do.

10. Then nothing happened until 19 September, when the plaintiff’s solicitors wrote and advised the defendant’s solicitors that Miss C had recently discovered that she was pregnant and was expecting to give birth to a baby in April 2014.  Furthermore, Miss C had been advised by her treating doctor that she was having complications with her pregnancy and that she should not travel by plane for the remainder of her pregnancy.

11. The plaintiff’s solicitors then invited the defendant to cease the contest of the application and pay the costs for it, save the costs of 28 August that I had already ordered.  The plaintiff’s solicitors further said that in the light of the circumstances, it was unnecessary to obtain any expert report on Miss C’s flight phobia.  However, if the defendant did not stop the contest, Miss C would be agreeable to be examined by a psychiatrist jointly chosen by the parties, subject to the following conditions:

“(1) The examination shall be conducted at a venue which would take no more than a 20 minute drive from Miss [C’s] office.

(2) The examination shall take place in the absence of the plaintiff and the defendant (as well as their respective solicitors/representatives).

(3) The date and time on and at which the examination shall take place shall be subject to the availability and convenience of Miss C.

(4) The examination shall not last for more than one hour.

(5) The choice of the expert and any instructions to be given to the expert (save for those on administrative matters) shall be subject to the final approval of Miss C.

 (6)   Any fees and expenses associated with the examination and the preparation of the expert report shall be borne directly by the parties as opposed to Miss C.”

The plaintiff's solicitors also imposed four conditions as follows:

“(1) Any fees and expenses associated with the examination of Miss C and the preparation of the expert report shall be borne by the parties in equal shares, with the same being subject to recovery (as part of the costs of the Application) upon resolution of the same.

(2) The Parties shall agree on the choice of the expert as well as the form of the written instructions to be issued to the expert by 4 October 2013 at the latest.

(3) The expert to be appointed shall, as soon as practicable, confirm and agree that:

(a) he/she has no conflict to act;

(b) prior to the Parties’ initial joint inquiry, he/she has not had any contact with (i) the Plaintiff; (ii) the Defendant; (iii) any of the Parties prospective agents or representatives; or (iv) anyone from Clifford Chance or Winston & Strawn;

(c) he/she has not had (prior to the parties’ initial joint inquiry), and will not have, any discussions and/or communications regarding the examination of Ms. C and the preparation of the joint expert report with any person other than: (i) Clifford Chance and Winston & Strawn jointly; or (ii) Miss C; and

(d) he/she shall be able to revert to the Parties with the expert report by 25 October 2013 (Hong Kong time) provided that an examination on Miss C can be conducted on or before 18 October 2013.

 (4)   Any communications with the expert as made by Clifford Chance and Winston & Strawn shall be made jointly in all circumstances.”

12. The plaintiff's solicitors also enclosed in the letter a draft email to the expert candidate and a draft letter of instruction to the chosen expert, both to be issued jointly by the solicitors on both sides.  They asked the defendant's solicitors to comment on the drafts by 27 September.  I have read the two drafts and consider them fairly drafted and could be used for their intended purposes.

13. On 26 September the plaintiff's solicitors wrote again and provided the defendant solicitors a letter dated 20 September 2013 from Michael T Johnson MD Vice Chair of Clinical Affairs, associate professor, David Geffen School of Medicine at UCLA, Department of Obstetrics and Gynaecology.  The plaintiff's solicitors then asked the defendant's solicitors to confirm by 27 September that they would not resist the application any more.  The letter of Professor Johnson reads:

“To whom it may concern,

The above referenced patient, [C] is under my care for pregnancy. Her first date of last period was in July 2013, which makes Ms [C’s] estimated date of delivery 04/27/2014.  Miss [C] is having complications with her pregnancy and is unable to travel.  Therefore, this letter is to inform you that she would be putting herself and unborn child at risk if she were to travel.  I have advised her not to travel by plane for the remainder of her pregnancy due to the complications and prior history of miscarriage.”

Unfortunately, Professor Johnson did not share with us his learning in the letter and there is no indication of what complications Miss C was suffering from and why travelling by air would put her and her baby at risk.

14. The defendant's solicitors replied on the same day.  They referred to Professor Johnson’s letter and said that as the letter was provided to them on that day, they needed time to take instructions and could not confirm the defendant’s position on 27 September which was the next day.  They hoped to reply in the course of the following week.  The plaintiff's solicitors replied on the next day that Professor Johnson’s letter did not contain anything new and wanted a reply by 3 October failing which the plaintiff's solicitors would proceed to take further steps to prepare for today’s hearing.

15. On 9 October the defendant's solicitors gave a long reply.  It is long because it contained a lot of unnecessary comments and accusations.  There are, however, several paragraphs that are of importance. On the pregnancy issue, paragraphs 2 and 3 read,

“C’s Purported Pregnancy:

…

2. Having belaboured the point about Miss [C’s] psychological conditions for some time, you now seem to suggest that you would also be seeking to rely on Miss [C’s] pregnancy as an additional ground in support of the Application. If that is the case, you should have appreciated that the mere assertions contained in your letter are wholly inadequate. It is arrogant for you to request that we should simply accept these assertions at face value when considering our client’s position.

3. If, indeed, you are seeking to rely on Miss [C’s] pregnancy as an additional ground, we ask that you give the Court and our client the respect they deserve by making available, without further delay, by way of Miss [C’s] evidence on oath, all facts and materials relating to the following matters:

(a) confirmation of the existence of her pregnancy, current status and anticipated due date (which you indicated to be around April 2014);

(b) the nature and impact of the alleged “complications” expected or experienced by Miss [C] and the extent to which such complications would prevent Miss C from travelling and;

(c) the number of miscarriages Miss C has had in the past in support of the alleged “history of miscarriage” as opposed to an isolated incident.”

16. On the joint medical report issue, paragraph 9 reads:

“9. Now that your client has been given the chance to take a second bite of the cherry and rectify the serious deficiency in his Application, we consider that it is only necessary and fair for Miss [C] to be examined by a clinical psychiatrist with actual expertise in the relevant medical areas and whom Ms [C] does not or could not exercise any influence. We stress, however, that your client’s agreement to subject the joint medical report to a laundry list of unreasonable conditions (amounting to more than 10) is disingenuous and raises significant doubts over whether your client’s agreement to producing a joint medical report was made in good faith. We therefore propose the following:

(a) Miss C avail herself for an examination by a clinical psychiatrist which will take place before 31 October 2013 in view of the date of the Hearing;

(b) The examination shall be conducted at a venue in Los Angeles as agreed between the parties;

(c) The fees and expenses incurred in connection with the examination and the preparation of the expert report shall be borne directly by the parties; and

(d)  We will provide our shortlist of candidates subject to your client’s agreement to 9(a) - (c) above.”

17. Despite all the criticisms on the plaintiff’s evidence of the pregnancy issue and the flight phobia issue, the accusations of the plaintiff’s delay and the imposing of conditions for the joint examination, the defendant's solicitors did not make any criticisms on the contents of the draft email and draft letter of instructions.  Though the defendant’s solicitors said that they disagree with the conditions imposed by Miss C and the plaintiff's solicitors, they did not say why.

18. Looking at the conditions imposed by both sides, it is clear that if there was a gap, it was a small one.  I do not think the conditions imposed by the plaintiff's solicitors would pose any problem. Regarding Miss C’s conditions, before the identities of the candidates on the defendant’s shortlist are known, no one knows whether Miss C’s first condition would cause any problem.

19. For her second condition, if an expert was to be engaged jointly, I do not think the defendant or her solicitors would want to be present in the examination which would take place in Los Angeles and they did not say that they would in the four conditions they imposed.

20. For her third condition, it is the same as condition (b) imposed by the defendant solicitors.  If she should fail to agree to the date and time, I do not think the plaintiff's solicitors would.

21. For her fourth condition that the examination should not last for more than hour, it is a matter for the expert to decide whether it is sufficient.  In fact, when she was later examined by the plaintiff’s expert, Dr Lymberis (without the knowledge of the defendant), she was also reluctant to commit to be examined for more than an hour.  But the examination actually lasted for two and half hours as she realised in the examination that it was not a critical, cold and judgmental examination.

22. Her fifth condition said that the choice of expert and the instructions to the expert should be subject to her approval. On the choice of expert, the defendant’s condition (d) said that they would provide a shortlist of candidates subject to the plaintiff’s agreement to their conditions (a), (b) and (c).  Hence she could approve or disapprove of the candidates on the defendant’s shortlist.  This part of her fifth condition was impliedly acceded to by the defendant. 

23. Regarding the content of the instruction letter, despite the length of the defendant’s solicitors’ letter of 9 October and the amount of criticisms and accusations contained therein, the defendant's solicitors had not said a word against the two drafts which were sent to them expressly for the purpose of having their comments.  It is obvious that these drafts must have been approved by Miss C before they were sent out by the plaintiff's solicitors.  So despite the expressed disagreement between the parties, the gap between them, if there was one, was a narrow one.  Given goodwill and a sense of cooperation, it would not have been difficult for an agreement to be made for a joint examination to be conducted.

24. On 15 October the defendant's solicitors further wrote:

“2. We note that we are still awaiting your confirmation as to whether your client is agreeable to the proposal set out in paragraph 9 of our letter date 9 October in respect of the joint medical report regarding Miss [C’s] purported fear of flying. We do not consider the proposal to be controversial, especially given that your client has already agreed in principle to the production of the medical report and the general substance of our proposal in your previous correspondence.

3. Moreover, we wish to point out that the resumed hearing of the Application, which has been scheduled to take place on 14 November 2013, is only one month away. It should not have escaped your client’s notice that substantial time and effort may be required in procuring Miss [C’s] cooperation leading up to the medical examination in view of her apparent equivocal and evasive attitude towards this Application. It is further expected that the appointed medical expert will require sufficient time for the preparation of the medical report after the medical examination. Also, the parties should be afforded a reasonable opportunity to review and comment on the medical report in advance of the resumed hearing. Our client is particularly concerned about the parties’ lack of progress in coming to an agreement in respect of what we consider to be simple administrative arrangements of Miss [C’s] medical examination and on which the court has already expressed clear views as to its importance.

 4.   Accordingly, we strongly urge your client to proceed in this matter in a facilitative and timely manner and we ask that you let us have your reply to the proposal without any further delay by 18 October 2013, following which our client can immediately proceed to providing a shortlist of candidates for the parties’ consideration.”

This is the third time that the defendant's solicitors were mentioning about the provision by them of a shortlist of candidates for the consideration of the plaintiff's solicitors and, no doubt, for Miss C as well.

25. The plaintiff's solicitors replied on 17 October:

“We refer to your letter dated 9 October 2013.

Kindly note that we do not litigate by correspondence.

Your letter is so clearly rude and offensive, and so obviously written in a manner not geared towards progressing matters of import in a sensible manner. In particular, regarding your allegation that our client has imposed “a laundry list of unreasonable conditions” in respect of the obtaining of the joint medical report, kindly note that most of these conditions are required by Miss [C] as opposed to our client. Having said that, our client agrees with Ms [C] that these conditions are all reasonable and necessary, in particular, mindful of Ms [C’s] pregnancy (and the related complications), and in this regard your repeated allegations against Miss [C] that she has been uncooperative, evasive and disrespectful to the Hong Kong Court are simply unfounded and improper.

As for the rest of your letter, we shall not respond to it, but rather we will see you in court when we shall ask the judge to adjudicate on matters.”

26. On 25 October, the defendant's solicitors wrote back.  Paragraphs 5 and 6 are of significance:

“5. In view of the foregoing and to avoid any additional time and costs being wasted on the matter, please confirm the following matters without any further delay:

(a) whether your client intends to rely on any new grounds or formally adduce any further evidence in support of the Application (e.g. Ms [C’s] pregnancy and any “complications” arising therein);

(b) whether your client intends to continue relying on the ground that Ms [C] has a fear of flying and if so, whether he would agree to an independent examination of Miss [C] by a psychiatrist appointed by our client; and

(c) that any further evidence your client may intend to adduce is definitive and this evidence will be provided to our client well in advance of the resumed hearing on 14 November 2013 (“the Resumed Hearing”).

6.   In the event of your failure to provide a satisfactory response to us by 30 October 2013, our client will proceed with her preparation for the Resumed Hearing on the basis that your client intends to rely solely on the evidence canvassed in the [C] 1st affidavit filed on 14 August 2013 (and its exhibits) and the [C] 2nd affidavit filed on 22 August 2013.”

27. The plaintiff's solicitors did reply on 30 October.  The reply was to serve the third affidavit of Miss C and an affidavit of Mr Kevin So of the plaintiff's solicitors.  Mr So’s affidavit exhibited an expert report by Dr Law Chi-lim, Robert, a Hong Kong expert in obstetrics and gynaecology.  Dr Law had reviewed the medical and psychiatric documents referred to above and the first and second affidavits by Miss C.  He also had a long-distance telephone interview with Professor Johnson on 22 October.  Dr Law opined in his report:

“10. There is no doubt that Miss [C] is having a high risk pregnancy.

11. Miss [C] is 39 years old. In obstetrical practice, “advanced maternal age” is defined as greater than age 35 and these patients tend to have higher perinatal morbidity and mortality. Women of Miss [C’s] age also have increased risks of a complication known as pre-eclampsia in addition to other complications like maternal mortality, caesarean section delivery, operative vaginal delivery, antepartum bleeding, etc.

12. In addition, Miss [C] has had chronic hypertension for around 10 years. Approximately 15-30% of chronic hypertensive women would develop superimposed pre-eclampsia.

13. Thus there is a very substantial chance that Miss [C] will develop pre-eclampsia in the course of this pregnancy.

14. Pre-eclampsia is a complication of pregnancy that can manifest itself as either a maternal syndrome (hypertension and proteinuria with or without other multi-system abnormalities) or as a fetal syndrome (fetal growth restriction, reduced amniotic fluid and abnormal oxygenation).

15. What might be mild pre-eclampsia can progress rapidly to severe disease. As such the patient may develop a condition called eclampsia characterised by convulsion in the mother. This would have devastating (potentially fatal) effect on both the mother and the fetus.

16. There is no known medication or precautionary measures that would effectively prevent the onset of pre-eclampsia in patients with hypertension.

17. The direct flight from Loss Angeles to Hong Kong takes more than 15 hours. If the patient should develop severe pre-eclampsia or even eclampsia during this period of time, the result may be fatal for both mother and child.

18. To take indirect flights from Los Angeles to Hong Kong with multiple stops in Honolulu and Guam would not lessen the risks. On the contrary, it would prolong the time during which Miss [C] may be deprived of proper medical care in case of emergency.

19 Providing a medical escort during the course of Miss C’s flight would not alleviate the risk to Miss [C] because of the limited medical facilities available on a plane. Eclampsia is a medical emergency that requires a full medical team (including doctors of various disciplines and nursing staff support) to care for the patient. Very often care in an intensive care unit (ICU) is required.

20. In summary, Miss [C] is at risk of developing the various complications referred to in paragraph 11 above, and, in particular she is at a high risk of developing pre-eclampsia and even eclampsia during this pregnancy (even regardless of her flying phobia condition as further discussed in paragraph 21 below). The onset of her symptoms could be very sudden and rapid, with potentially fatal consequences. Solely for this reason, Miss [C] is simply not medically fit to travel from Los Angeles to Hong Kong in mid-January 2014.

21. I further understand from [C] 3rd (Miss [C’s] third affidavit) that Miss [C] also has a phobia of flying. Given that she had a past history of miscarriage during a flight, coming to Hong Kong on a 15-plus hours flight would result in a lot of stress and anxiety. This would certainly affect her blood pressure adversely. This would further increase the risk of eclampsia. Her anxiety may not be helped by taking anxiety drugs, as these drugs are best avoided in pregnancy because of the possible adverse effects on the fetus.

Conclusion

 22.   Miss [C] is not medically fit to travel from Los Angeles to Hong Kong in mid-January 2014.”

28. Dr Law’s view is backed by a practitioners’ textbook referred to by him in the report and his conclusion is soundly based. I therefore held at the hearing this morning that the defendant should not have resisted the application on pregnancy issue from 31 October onwards. 

29. In the course of this morning’s hearing, I criticised the plaintiff's solicitors for not giving notice to the defendant's solicitors of the fact that the plaintiff was obtaining expert reports on Miss C’s pregnancy and flight phobia.  This is correct in relation to the pregnancy issue, but not so in relation to the flight phobia issue as the plaintiff's solicitors did say in their letter of 30 October that they were in the process of obtaining an expert report regarding Miss C’s phobia of flying which they would provide to the defendant’s solicitors as soon as the same was available to them.

30. The defendant's solicitors replied on 31 October and complained that there was no forewarning that the plaintiff was going to obtain Dr Law’s report.  I think the defendant’s complaint is justified.  If they should have known that an expert report was to be obtained from a Hong Kong expert, they could have considered joining in to make the report a joint report or to engage their own Hong Kong expert to join in the conference between Dr Law and Professor Johnson.  In fact, their concern about additional evidence had been manifested in their letter of 25 October quoted above.

31. Without Dr Law’s report, I doubt if the plaintiff would have succeeded on the pregnancy issue.  It is Dr Law’s report that provides the proper evidence for the plaintiff’s application on the pregnancy issue.  I therefore agree with Miss Lam, counsel for the defendant, that the cost on the pregnancy issue should be apportioned. 

32. I order that costs of this issue up to and including 30 October be to the defendant and from 31 October onwards, including today, be to the plaintiff with certificate for two counsel. 

33. Regarding the flight phobia issue, I hold that it is the plaintiff’s refusal to continue the dialogue on 17 October that have frustrated the obtaining of the joint report.  Since they only served their psychiatric report of Dr Lymberis on the defendant on 5 November, that was the day that they had provided the proper evidence to support the application on the phobia issue.  I therefore agree with Miss Lam as well that the costs on this phobia issue should also be apportioned.

34. I order that costs of this issue be to the defendant up to and including 5 November as it was reasonable for the defendant to have resisted until then as there was insufficient evidence on this issue until after the service of the report of Dr Lymberis.  Costs on this issue from 6 November, including today, be to the plaintiff with certificate for two counsel.