KWAN YUEN MEI, administratrix of the estate of Chan Shuit Chan, deceased v. LAU SUI YUEN

CACV 15/2016 AND CACV 16/2016

CACV 15/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 15 OF 2016

(ON APPEAL FROM HCPI NO 569 OF 2009)

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AND

CACV 16/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 16 OF 2016

(ON APPEAL FROM HCPI NO 570 OF 2009)

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J U D G M E N T

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Hon Kwan JA (giving the judgment of the Court):

1.  We hand down our judgment in English notwithstanding that the hearing was conducted in Chinese. This is because most of the documents in the proceedings filed by the plaintiff, Madam Kwan Yuen Mei (“Madam Kwan” or “the plaintiff”), who has been acting in person throughout, are in English, including the various versions of the statements of claim she had attempted to file.

2.  These two appeals are brought by Madam Kwan in each of the actions she brought as plaintiff (HCPI 569/2009 and HCPI 570/2009), with leave granted by the Court of Appeal (Lam VP and Poon JA) in HCMP 3045/2015 on 22 January 2016[1]. Leave to appeal was restricted to one of the orders made by Lok J in each of the actions on 25 September 2015 (“the Dismissal Orders”)[2].  By the Dismissal Orders, Lok J struck out the two actions for want of prosecution and abuse of process of the court, namely, that the plaintiff has failed to file and serve her Revised Amended Statement of Claim in compliance with the order of Deputy High Court Judge Lok (as he then was) dated 19 April 2013 in each action.

HCPI 569 and 570

3.  The writs for the two actions were issued on 11 August 2009.

4.  In HCPI 569, the sole defendant is Dr Lau Sui Yuen.  He was the treating doctor of the plaintiff’s mother, Madam Chan Shuit Chan (“the deceased”), when the deceased was last admitted to Our Lady of Maryknoll Hospital (“the Hospital”) on 29 August 2006 until she passed away on 9 September 2006.  The cause of the deceased’s death was cancer of right kidney[3].  She had been under palliative care of the Hospital since December 2005.

5.  The first four defendants in HCPI 570 were the registered nurses taking care of the deceased and the 5^th defendant is the Hospital Authority.  The 1^st defendant has not been served with the writ as she could not be located.  At a hearing before Master Roy Yu on 27 March 2012, the plaintiff asked to discontinue the claim against the 1^st defendant and also agreed to allow the claim against the 3^rd and 4^th defendants be dismissed with costs to them[4].  The claim against the 1^st, 3^rd and 4^th defendants was struck out and dismissed with costs on 17 April 2012[5].  So the remaining defendants in that action are the 2^nd and 5^th defendants and the Master made orders granting leave to amend the statement of claim in that action only as against the 2^nd and 5^th defendants[6].

6.  When we refer to “the defendants” in this judgment, unless otherwise stated, they would be taken to refer to the defendant in HCPI 569 and the 2^nd and 5^th defendants in HCPI 570 collectively.  All references to “the judge” are to Deputy High Court Judge Lok or Lok J.

The Dismissal Orders

7.  The Dismissal Orders were made in respect of the summonses issued by the defendants on 28 October 2014 pursuant to Order 19 rule 1 of the Rules of the High Court and the inherent jurisdiction of the court.  The summonses sought dismissal of the actions for:

“(i) Want of prosecution, namely, the Plaintiff having failed to file and serve her Revised Amended Statement of Claim in compliance with the Order of Deputy High Court Judge Lok dated 19 April 2013; and/or

(ii) Prolonged/repeated/inordinate and inexcusable delay on the part of the Plaintiff to the prejudice of the defendant; and/or

(iii) Procedural abuse and/or questionable tactics/conduct and/or want of good faith on the part of the Plaintiff in this action.”

8.  In granting leave to appeal against the Dismissal Orders, the Court of Appeal quoted this part of §11 of the decision of the judge:

“The court had repeatedly emphasized to the Plaintiff the importance of complying with court orders, and she was well aware of the consequences of failing to do so. Numerous opportunities had been given to the Plaintiff to rectify the defaults, and yet the Plaintiff failed to observe the rules and the orders of the court. Under such circumstances, the Plaintiff should not be allowed to proceed with these claims against the Defendants, the quantum of which probably falls within the jurisdiction of the District Court. I therefore also allow the Dismissal Application.”

9.  The Court of Appeal went on to say in §15 of its judgment:

“Undoubtedly, when the plaintiff purportedly filed the correct versions of the statement of claim in October 2014, she was late and did so without first obtaining leave of the court to do so out of time. The question is: whether the delay in filing the correct versions of the statement of claim, coupled with her persistent failures to comply with the rules and orders, which the Judge placed heavy emphasis on, is sufficient to deprive her the right to pursue the claim of assault and battery, by dismissal, in the overall circumstances of the case. In our view, it is reasonably arguable that it might not. It is therefore reasonably arguable that the Judge erred in allowing the Dismissal Application.”

10.  In reviewing the exercise of the judge’s discretion to strike out the actions for repeated procedural abuse and contumelious conduct of the plaintiff, it is necessary to go through the key events in the conduct of these proceedings.

Key events in these proceedings

11.  The writs were issued in August 2009 and the amended statements of claim were filed in December 2009.  The claims against the treating doctor and nurses were in medical negligence.  As summarised by the judge[7] (who was seized of these proceedings since 2012 and had dealt with the majority if not all of the applications of the plaintiff in these proceedings in the Court of First Instance), the plaintiff’s complaints were that the medical team had intentionally used a series of inhumane ways to hasten the death of the deceased including the following:

“(i) wrongful deprivation of 3 medicines;

(ii) over dosage or wrong dosage of laxatives;

(iii) deprivation of pain relief medication;

(iv) wrong decision to provide food and medicine to the deceased by feeding when she could not swallow, resulting in hunger and dehydration;

(v) carrying out urine test without the consent of the deceased or her family members, and using catheter to collect urine from the deceased damaging her kidney;

(vi) forcing the deceased to sit up whilst in a coma causing suffocation and failing to follow the doctor’s prescription to provide antibiotic to the deceased; and

(vii) over dosage of IV fluid resulting in a swollen balloon-like object on the deceased’s arm thereby speeding up her death.”

12.  The defendants[8] issued striking out summonses on 4 February 2010 on the ground that the plaintiff had failed to adduce any medical evidence to substantiate her claim in compliance with Order 18 rule 12(1A) of the Rules of the High Court and Practice Direction 18.1 and it had no reasonable prospect of success. The applications came before Master Yu in July 2011.  By then, the plaintiff managed to adduce some medical reports before the court.  Judgment was given on 2 September 2011.  It was held that the medical evidence adduced by the plaintiff was so unsatisfactory that it was of no help to show whether the defendants had been negligent and her case on medical negligence has no reasonable prospect of success.  The Master ordered all claims in medical negligence be struck out and dismissed.  He took the view there might be a claim against some of the defendants for carrying out urine test on the deceased without the appropriate consent.  As there were insufficient particulars in the pleadings as to how the urine test was carried out and medical evidence to support the alleged resulting damage of such possible claim, he adjourned the hearing for the plaintiff to file revised statements of claim.  He ordered the plaintiff to lodge and serve a draft revised statement of claim limited to her claim on the alleged urine test without consent (and not on other issues which he had dismissed) within 28 days thereof, failing which the actions would be struck off.  Upon compliance with this direction, the summonses were to be restored before him for determination and further directions.

13.  On 15 September 2011, the plaintiff lodged and served a draft revised statement of claim in each action, which did not include the previous claims of medical negligence, with a statement of truth signed by her. In §3 of the draft, she quoted from the medical notes of the Hospital and alleged that the catheterized urine check of the deceased ordered by Dr Lau Sui Yuen was done without the consent of the deceased and/or her family members and that when using catheter to collect urine from the deceased, the handling nurse (the 2^nd defendant) had caused injury to the urinary system.  In §§4 and 5, it was alleged that no written consent was given by the deceased and/or her family members and the medical personnel neglected to obtain the necessary consent on purpose because the plaintiff was “not coping well”.  §6 pleaded that by reason of the defendants’ negligence pleaded above, the plaintiff suffered loss and damages.  In §7, it was pleaded that medical evidence in support of the injuries and damage to the deceased shall be adduced in due course with leave.

14.  On 16 September 2011, the plaintiff filed notices of appeal to appeal against Master Yu’s judgment of 2 September 2011.

15.  At the restored hearing before Master Yu on 27 March 2012, the draft revised statements of claim were considered.  He handed down his ruling on 17 April 2012.  The Master accepted there was pleaded a prima facie case on negligence or assault and battery in carrying out the catheterized urine test against the nurse but held that there was no reasonable cause of action against Dr Lau[9].  He ordered the action in HCPI 569 be struck out and allowed the plaintiff to pursue her claim against the 2^nd and 5^th defendants in HCPI 570 on the claim of carrying out the urine test without proper consent thereby causing injuries and loss to the deceased[10].  The amended statement of claim in HCPI 570 was ordered to be filed within 21 days. In view of the appeal against the judgment of 2 September 2011, it was directed that further directions on filing the statement of damages and medical report be deferred until after the appeal.

16.  The plaintiff filed notices of appeal against Master Yu’s ruling of 17 April 2012.

17.  All the appeals were heard by the judge on 31 July and 4 September 2012 and the decision was handed down on 9 October 2012. The judge dismissed the appeal against Master Yu’s judgment of 2 September 2011. Having reviewed the medical reports adduced by the plaintiff, he concluded that the reports cannot assist her in establishing a prima facie case of medical negligence against any of the defendants in respect of any of her complaints as summarised above, including the alleged negligence concerning the taking of the urine sample[11].  That left a claim of battery for conducting the urine test without the appropriate consent.

18.  The judge allowed the appeal against Master Yu’s ruling of 17 April 2012 in striking out HCPI 569, holding that it is arguable that Dr Lau might be vicariously liable for the tort of battery committed by the nurses in carrying out the urine test without proper consent.  He did not disturb the Master’s order dated 17 April 2012 in HCPI 571.  As he has allowed the plaintiff to pursue the claim for battery against Dr Lau, he made an order in HCPI 569 granting leave to the plaintiff to file and serve a re-amended statement of claim in terms of the draft revised statement of claim lodged on 15 September 2011 within 21 days[12].  The judge noted there is no medical evidence to prove the causal link between the carrying out of the urine test (on 7 September 2006) and the death of the deceased (on 9 September 2006), so even if the plaintiff should succeed on the claim of battery, the damages would be limited to the pain and suffering suffered by the deceased during the limited time of her hospitalisation[13].

19.  There was no appeal from the decision of the judge on 9 October 2012.  The plaintiff did not comply with the order of Master Yu on 17 April 2012 and the order of the judge on 9 October 2012 to file and serve re-amended statements of claim in terms of the draft revised statement of claim lodged on 15 September 2011.  She refused to accept that her claim has been confined to a claim in battery and sought to revive her claims in medical negligence which were struck out and dismissed.  She also sought to reinstate the claim against those defendants notwithstanding it was ordered that the claim against them be struck out and dismissed.  She even sought to add a defendant who was a speech therapist in the medical negligence claims.

20.  Between October 2012 and April 2013, the plaintiff took a series of action to further her objectives:

(1)   On 29 October 2012, she filed re-amended statements of claim[14] in the two actions with major and extensive amendments to the draft lodged on 15 September 2011 to include her claims in medical negligence.  It was alleged that the catheterized urine check caused four hours of bleeding and an infection and the doctor and nurse did not allow an emergency rescue for the deceased’s critical conditions and so the deceased died two days later.  The previous allegations of malpractice and ill treatment when the deceased attended the hospital over eight months for palliative care (which were struck out) were all revived.

(2)   The defendants’ solicitors protested against the re-amended statements of claim which were not in compliance of court orders.  On 19 November 2012, the judge’s clerk wrote to the plaintiff that if she intended to amend her pleadings, she should issue a summons.  On 23 November 2012, she took out two summonses seeking, inter alia, leave to re-amend “the Writ of Summons” against all the defendants she had sued with the addition of a speech therapist for having participated in a “pre-planned and malicious action of malpractice”, “8 months of abusive care and ill-treatment for the deceased” in the Hospital until the deceased “was forced into an unnatural and painful death”.  She filed six affidavits in support.  The judge dismissed her applications on 12 December 2012.

(3)   On 18 December 2012, the plaintiff took out two summonses returnable before a Master for leave to file a re-amended writ of summons and statement of claim in each action.  She filed four affidavits in support.  They were dismissed by Master Li on 27 December 2012.

(4)   On 7 January 2013, she issued two summonses for leave to “withdraw paragraph 36(v) of Decision dated 9 October 2012”, to “withdraw (cancel) all the previous Amended and/or Re-amended Writ of Summons, Amended and/or Re-amended Statement of Claim and Amended and/or Re-amended Statement Damages dated in or before 2012” and replace them with her revised drafts annexed to the summonses, to reinstate various defendants and add the speech therapist as a defendant.  §36(v) of the Decision dated 9 October 2012 stated that an order was made giving leave to file and serve a re-amended statement of claim in HCPI 569 in terms of the revised draft lodged on 15 September 2011.

(5)   On 18 January 2013, the plaintiff appealed against the order of Master Li on 27 December 2012.

(6)   On 28 January 2013, the judge dismissed the appeal against Master Li’s order and the summonses issued on 7 January 2013.

(7)   On 4 February 2013, she issued two summonses for leave to file “Re-amended Statement of Claims (7 pages)” and “Revised Statement of Claim (4 pages)”.

(8)   On 15 February 2013, she issued two summonses seeking among other things to file “Re-amended Writ of Summons” and “Re-amended Statement of Claim”, to reinstate various defendants and add the speech therapist as a defendant, and to “withdraw paragraph 36(v) of Decision dated 9 October 2012”.  She filed four affidavits in support.

(9)   The judge dismissed the summonses of 4 and 15 February 2013 on 19 February 2013.

(10)   On 10 April 2013, the plaintiff issued two summonses seeking leave to “withdraw paragraph 36(v) of Decision dated 9 October 2012” on the ground that she “cannot in good conscience submit a false statement of claim to the court.  The Draft Revised Statement of Claim contains untrue facts which must be corrected. Resubmitting the document in its existing form would constitute a crime because the law requires submissions to be honest and submitted in good faith.” She stated that she has “repeatedly told the court that the Draft Statement of Claim is correct, but Lawyer Sit[15] has pressured the Plaintiff to sign a false declaration.”

(11)   At the hearing on 19 April 2013, the judge noted that the draft re-amended statement of claim dated 5 April 2013 submitted by the plaintiff was not in compliance with his order of 9 October 2012.  He reiterated that the court had only permitted her to pursue a claim in assault and battery.  Hence the cause of action pleaded as “negligence” in §6 of the draft pleading should be altered to read “assault and battery” to reflect the decision of the court[16]. He also deleted other parts of the draft not in compliance with the court order or the Rules of the Court.  He dismissed her summonses of 10 April 2013.  He granted her another opportunity to comply with the court order and gave her leave to file and serve the correct version of the re-amended statement of claim within 14 days.  For avoidance of doubt, a copy of the corrected version with the amendments made by the court was annexed to the order of 19 April.  He specifically reminded the plaintiff to comply with that order or her claims might be dismissed[17].  As noted by the judge, there should have been no difficulty for the plaintiff to comply with his order and she should have been fully aware of the consequences of failing to comply with it[18].

21.  The plaintiff took great exception to the deletion of the word “negligence” in her draft pleading and the substitution of the words “assault & battery”.  In purported compliance with the order of 19 April 2013, she filed “Revised Statements of Claim” on 24 April 2013. §§1 to 9 in the body of this pleading are the same as the draft revised pleading annexed to the order of 19 April 2013 (with the cause of action altered to assault and battery in §6), but she added a paragraph at the end under the heading “Criminal Commition” [sic] which reads:

“The Revised Statement of Claim is illegal and was drafted by the tricky Mak Hon Ming[19] (copy enclosed). The undersigned (Plaintiff) was insisted to submit an official sworn copy to the High Court along with more than twenty thousands [sic] dollars of fines. The undersigned has resisted such an illegal action but it was forced by the High Court after months of resistance. I must announce that it is a crime to submit an untrue Revised Statement of Claim under pressure from Lawyer Sit and the High Court. No one should be forced to violate the law by lying in a sworn document.”

22.  This was followed by the required Statement of Truth signed by the plaintiff.

23.  As enumerated by the defendants’ counsel Mr Brian Wong, the plaintiff made eight attempts in all between October 2012 and April 2013 to file a statement of claim seeking to revive the claims in medical negligence that had been struck out and dismissed, to reinstate various defendants and to add another defendant, contrary to the court orders.

24.  The defendants issued two summonses on 2 May 2013 to set aside the “Revised Statements of Claim” dated 24 April 2013 for irregularity in that they failed to comply with the order of 19 April 2013 (“the Irregularity Applications”) and two summonses on 8 August 2013 for restricted application orders (“the RAO Applications”).  The judge imposed an interim RAO on 10 October 2013 and adjourned all the applications for argument.

25.  The plaintiff took no steps to file a statement of claim compliant with the court orders until the day before she was to appear before the judge on 14 October 2014.  She filed affidavits exhibiting the “Revised Statement of Claim” (3 pages) and the “Statement of Truth” (1 page). She served copies on the defendants on 14 October.  By a letter to the court dated 27 October 2014, she claimed that she “did not understand and was confused by legal terms” and “did not intentionally ignore the Court Order”.  She tendered her apology to the court.  She again submitted a correct version of the pleading with this letter.

26.  On 28 October 2014, the defendants issued the summonses for the Dismissal Orders which gave rise to these appeals.

The exercise of discretion

27.  As Ma CJ stated in Wing Fai Construction Co Ltd v Yip Kwong Robert (2011) 14 HKCFAR 935 at §80:

“Finally, I would like to stress that the power to strike out for delay is of course discretionary and derives from the inherent jurisdiction of the court. The inherent jurisdiction of the court exists to avoid injustice, prevent abuse, preserve the dignity of the court or to facilitate the administration of justice: see Credit Lyonnais v SK Global Hong Kong Ltd [2003] 4 HKC 104, 107B-C para. 2. In exercising its discretion under the inherent jurisdiction, a court must, in applying those principles I have earlier set out, ultimately ask itself the question whether or not in the circumstances, it is just to strike out. A mechanistic approach in which the bigger picture is lost sight of (or, to adopt a more colourful phrase commonly used in our courts, to “lose the wood for the trees”), is to be eschewed.”

28.  For the relevant principles set out in §75 of Wing Fai Construction, as submitted by Mr Wong, the following principles are particularly pertinent to the present situation:

(1)   Striking out is a remedy of last resort, and only where it would be plain and obvious to do so.  If there are other measures that are more appropriate to be taken, they ought to be (§75(1)).

(2)   Abuse of the process of the court is the foundation for the exercise of the jurisdiction to strike out for delay (§75(2)).

(3)   Abuse can take many forms. Where a delay which is inordinate and inexcusable causes a substantial risk that a fair trial is not possible, this is the most compelling form of prejudice. There may be other forms of prejudice (§75(3)).

(4)   Where abuse is clearly demonstrated, proceedings can be struck out even where prejudice to the defendant cannot be shown.  For example, where there is contumelious conduct on the part of a plaintiff, no prejudice to the defendant need necessarily be shown. However, in the majority of applications to strike out for delay, the aspect of prejudice to the defendant will often be extremely relevant (§75(7)).

(5)   The conduct of the parties will remain a relevant consideration both to the critical question of abuse as well as to the overall justice of the case (§75(8)).

(6)   The court does not look only to the position of the parties but it must have regard to wider considerations including the underlying objectives of ensuring that the court’s resources are distributed fairly, and that the policy of the Civil Justice Reform is for disputes to be expeditiously, effectively and efficiently resolved by ensuring that parties to litigation get on with the proceedings by complying with the Rules and orders of the court.  When Rules and orders are not complied with, this results in the type of unnecessary interlocutory activity that the CJR strives to eliminate.  If stale claims were permitted to continue, due administration of justice would be prejudiced (§75(9)).

29.  We are concerned with the exercise of discretion of the judge, who is most familiar with the entire history of these proceedings.  In accordance with established principles, the Court of Appeal would not interfere with the exercise of his discretion unless it is shown that he exercised his discretion under a mistake of law, or in disregard of principle, or was under a misapprehension as to the facts, or that he took into account irrelevant matters, or that the conclusion he reached was outside the generous ambit within which a reasonable disagreement is possible.

30.  In making the Dismissal Orders, the judge has said this in §11 of his decision on 25 September 2015:

“This is not the first time that the Plaintiff has refused to comply with the court order. As mentioned above, the Plaintiff did not accept the Earlier Decision [the judge’s decision on 9 October 2012] and sought to file different versions of the revised Statements of Claim contrary to the Earlier Decision. This is certainly an abuse of process of the court involving repeated contumelious defaults on the part of the Plaintiff to comply with court orders. The Plaintiff made a belated attempt to file the correct versions of the Statements of Claim only in October 2014, but in my judgment, this was simply too late.”

31.  There is clearly abuse of the process of the court.  The abuse took the form of repeated contumelious defaults on the part of the plaintiff to comply with court orders.  The plaintiff clearly understood her claims in medical negligence were struck out and dismissed.  She had lodged a draft statement of claim on 15 September 2011 and this was confined to the scope of the claim she was allowed to pursue, pursuant to the order of Master Yu of 2 September 2011, which was upheld on appeal by the judge on 9 October 2012.  Even though a corrected version of the draft pleading was annexed to the order of 19 April 2013, she did not serve a compliant pleading until October 2014.  The judge did not accept her belated claim in October 2014 that she “did not understand and was confused by legal terms” and “did not intentionally ignore the Court Order”, as he had “repeatedly emphasised to the Plaintiff the importance of complying with court orders, and she was well aware of the consequences of failing to do so”[20].  There is ample justification for the judge in taking the view he did.

32.  We do not think it material that the judge did not make a peremptory or unless order against the plaintiff requiring her to file and serve a compliant pleading within a specified time failing which the actions would be struck out.  As the judge has stated in §11 of his decision, he had “repeatedly emphasised to the Plaintiff the importance of complying with court orders, and she was well aware of the consequences of failing to do so”, and “numerous opportunities had been given to the Plaintiff to rectify the defaults”.

33.  The repeated attempts of the plaintiff to revive the claims in medical negligence, to reinstate those defendants who had the claims against them dismissed, and to add another defendant were clear manifestations of her persistent refusal to accept the decisions of the court that she cannot pursue those claims.  Thus, she claimed she could not “in good conscience submit a false statement of claim” verified by the required statement of truth, and alleged she was required “to submit an untrue Revised Statement of Claim under pressure from Lawyer Sit and the High Court”.  She protested that “no one should be forced to violate the law by lying in a sworn document”.

34.  That the plaintiff has not changed her stance is apparent from the submissions she has lodged in these appeals.  In her submission dated 26 July 2017, she maintained all the allegations of medical negligence[21].  She alleged that her claim for personal injuries was forced to be changed to a claim in “assault & battery”, and that her claim was changed to “assault & battery” on a pretext, the purpose of which is to allow the medical personnel to be let off with impunity by removing material and important evidence, and that this would lead to an unfair decision to the plaintiff.[22]

35.  The plaintiff’s further submission dated 4 August 2017 is to the same effect.  She alleged that the purpose of changing her claim to “assault & battery” is to eliminate the civil wrongdoing and criminal offence of the various defendants[23].  She asserted that she has absolute right and liberty and is protected by law to submit to the court the document she chooses[24].

36.  In her oral submissions to the court, the plaintiff maintained the stance mentioned above.  She made it clear she would not swear to the truth and correctness of a pleading with all the allegations of negligence removed.

37.  Given that the plaintiff is adamant in her belief that she should not be compelled to pursue her claim in the manner as confined by the decisions of the court, and in light of her repeated contumelious defaults to comply with the court orders, we agree with the judge that it is a proper exercise of discretion to strike out her claim in these circumstances.  This is to prevent further abuse of process, facilitate the administration of justice and to preserve the dignity of the court.  There is no basis to interfere with the judge’s exercise of discretion in striking out the two actions.  We therefore dismiss the two appeals.

38.  We have heard submissions on costs.  The plaintiff submitted she should not be liable to pay the defendants’ costs even if she should lose the appeals as she has pursued the proceedings for public interest.  We do not agree with her assertion.  We see no reason to depart from the rule that costs should follow the event.  We order the plaintiff to pay the costs of the defendants in these appeals, to be taxed if not agreed.