HO WAI TUNG v. HO FUNG

HCPI 1334/2016

[2020] HKCFI 1787

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1334 OF 2016

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BETWEEN

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DECISION

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I. INTRODUCTION

1.  The defendant (“D”) was/is a specialist in otorhinolaryngology. The plaintiff (“P”) was his patient, and was 38 years old at the time of the indexed medical incidents in 2013. P sued D in the present action for personal injuries, loss and damages in respect of medical professional negligence for such indexed medical incidents. The present application before this court concerned P’s request for leave to serve his supplemental witness statement, which D opposed.

II.  P’s CLAIM

2.  P claimed as follows:

(a)	P suffered nasal blockage causing nocturnal awakening, and was diagnosed with hypertrophy of nasal turbinates for which he underwent subtotal bilateral turbinate reduction on 30 August 2007 (“1st Operation”), but whilst the nasal blockage on the left side was totally relieved after such operation, P still found and complained of right-sided nasal obstruction;
(b)	P was subsequently diagnosed with sleep disordered breathing, and sleep endoscopy was done on June 2009;
(c)	on 24 February 2012 P consulted D, and in March 2012 D diagnosed P suffered from sleep apnea;
(d)	in November 2013 P consulted D for right nasal obstruction, and D explained P’s right turbinate still caused nasal obstruction and advised tonsillectomy and right turbinectomy, but D did not advise left turbinectomy or surgery to P’s left turbinate, or explain to P the risks, complications and consequences of such procedure;
(e)	at the consultation in November 2013 D informed P about the procedures and their potential complications, and when P particularly asked about the risk of atrophic rhinitis and injury to the Eustachian tube from right turbinectomy, D replied that (i) as P did not suffer from atrophic rhinitis after the 1st Operation he would not suffer such condition after a similar second operation, and (ii) there no risk of injury to the Eustachian tube given the distance from the inferior turbinate, but D did not explain/advise (1) the consequences of these complications should they materialise from any right turbinectomy having regard to P’s bilateral turbinectomy in 2007, or (2) any need to have a left turbinectomy and the risks, complications and consequences of such procedure;
(f)	before P underwent surgery at St. Teresa’s Hospital as advised by the D (“2nd Operation”) in December 2013, P relying on D’s advice in (e) above signed a standard printed consent form (which only listed common surgical complications);
(g)	when D came to see P after the 2nd Operation, he told P he had also trimmed the left turbinate, but D never obtained P’s consent to perform left turbineetomy and never advised P the risks, complications and consequences of such procedure in the absence of any complaint/problem with the left nasal passage and after a previous bilateral turbinectomy;
(h)	P claimed he would not have consented to a left turbinectomy had D advised him of the material risks involved in further revision of the left turbinate in the absence of any complaint/problem with the nasal passage or any left sided nasal obstruction;
(i)	after the 2nd Operation, P had no further nasal obstruction in the right nostril and his left nasal passage remained patent as before such operation, but P noticed slight discomfort in the left ear;
(j)	in the 3 months after the 2nd Operation, P noticed left ear obstruction and tinnitus with increasing hearing impairment, so he consulted 2 ENT surgeons and was advised that (i) his left Eustachian tube was damaged and blocked, and (ii) as a result he suffered from left otitis media with effusion (“OME”), which was due to injury from the 2nd Operation;
(k)	P consulted D who agreed P suffered from OME and who performed a nasal endoscopy, but D denied any damage to the left Eustachian tube and did not say P’s left OME was due to damage to the left Eustachian tube;
(l)	in March 2014, P consulted ENT surgeon Dr Herman Tang Man Kai (“Dr Tang”) who advised that P’s left Eustachian tube was damaged and blocked, and as a result P suffered left OME due to injury from the 2nd Operation; and Dr Tang’s examination showed (i) P’s nose was very patent on both sides, (ii) both inferior turbinates were reduced to ¼ of the original thickness along the whole length, (iii) the right Eustachian tube was normal, (iv) the anterior ½ to ⅔ of the cushion in the left Eustachian tube was missing (with normal tissue replaced by scar tissue), and (v) the left Eustachian opening was reduced to a tiny pin hole;
(m)	subsequently, P consulted public hospital ENT surgeon who confirmed left OME and problem with the left Eustachian tube;
(n)	P consulted Dr Tang for treatment of left OME, and Dr Tang’s nasal endoscopy showed scars over the left Eustachian tube with missing anterior cushion;
(o)	from 24 November 2015 P consulted Dr Yu Hip Cho (“Dr Yu”) for treatment of left OME, and thereafter P received treatment from Drs Tang and Yu for treatment of left OME up to 5 times a week.

3.  P alleged D performed an unnecessary left turbinectomy at the 2^nd Operation for which D did not obtain his consent. P claimed he had no left-sided nasal complaint when he consulted D in November 2013, and D did not advise him of the material risks of revision turbinectomy or the risks of revision turbinectomy to his left turbinate. P averred even if there were complaints (which he denied), it was still unnecessary and risky to perform the left sided turbinectomy. After all, only scanty turbinate tissue was removed by the 2^nd Operation, which would not have any effect on the patency of the left nasal passage or airway. And even if consent were given by signing the standard printed consent form or otherwise, this was vitiated by the matters in paragraph 2(e) above, particularly that D failed to provide any or any proper explanation of the material risks of or the need for left turbinectomy, which in any event was unnecessary. Thus, P claimed D negligently failed to properly advise/inform P of the risks of left turbinectomy.

4.  P also claimed that in the course of the 2^nd Operation D negligently cut the left Eustachian tube, and cut/removed the left anterior Eustachian cushion or part thereof during the left turbinectomy.

5.  P claimed he did not have any left ear problem prior to the 2^nd Operation, but scarring subsequent to the cutting/removal of the left Eustachian cushion or part thereof caused paralysis of the left Eustachian tube, which thereby caused abnormal/inadequate ventilation to the left middle ear creating negative pressure status, and caused glue/fluid to be secreted by the middle ear mucosa and to accumulate, with residual damage in the form of OME which was a debilitating ear condition for which there was no cure. So P suffered permanent left Eustachian tube injury with complete obstruction resulting in the complication of left OME.

III.  D’s DEFENCE

6.  D claimed P consulted him in 2007, 2009 and 2012-2014, and the 2^nd Operation was carried out at St Teresa’s Hospital where he was granted admission privileges.

7.  D claimed as follows:

(a)	P attended public hospital in/about September 2006 for symptoms of nocturnal snoring for 2-3 years, and he suffered from nasal blockage occasionally, nocturnal awakening occasionally, daytime sleepiness, and recent weight gain. He was referred for sleep study which was performed in November 2006. It was found P had moderate sleep apnea syndrome, and although P was offered continuous positive airway pressure (“CPAP”), he preferred positional method by tennis ball and weight reduction. P attended follow up in the public sector, and the doctor considered his problem was due to nasal blockage rather than obstructive sleep apnea. P had poor sleep at the time which required mouth breathing at night during sleep.
(b)	When P consulted D at a public hospital in August 2007, P suffered from nasal obstruction, sneezing with discharge and snoring, and examination showed bilateral inferior turbinate hypertrophy. In/about August 2007, P was also diagnosed by public hospital doctor to have turbinate hypertrophy and mild to moderate obstructive sleep apnea syndrome. P was offered the 1st Operation (ie turbinate reduction and turbinectomy), and P signed the relevant consent form and was referred to the information sheet for inferior turbinate reduction that listed common side effects and complications, uncommon but serious side effects and complications (eg injury to Eustachian tube), and available alternate treatment. The 1st Operation was done on 30 August 2007.
(c)	P attended follow up in October 2007 reporting better nasal obstruction, and in June 2008 reporting similar nasal obstruction but worse at night as well as congested throat. Nasal endoscopy showed P had mild hypertrophy of inferior turbinates at the tip. P attended public hospital in June 2009 for disturbed sleep, excessive daytime sleepiness and snoring. Examination showed P had bilateral nasal alar collapse, Modified Mallampati Class 2, Tonsil Size Grade 4, long uvula and mild posterior pillar web, and Muller’s manoeuver showed level of airway resistance was at retropalatal level. Sleep study (home test) was offered and performed in June 2009. P also underwent sleep endoscopy in June 2009, which showed he had mild obstructive sleep apnea syndrome.
(d)	In February 2012, P consulted D who examined and diagnosed him with sleep apnea and suspected thyroglossal duct cyst. P requested for surgical treatment, but D recommended conservative treatment via a trial of CPAP first. D also ordered ultrasonographic examination of P’s neck to investigate the suspected thyroglossal duct cyst, and such examination was also done in February 2012.
(e)	In March 2012, P consulted/informed D he could not tolerate CPAP after the 1st 3 nights. D advised P to continue with CPAP because his symptoms had some improvements, and D explained the findings of the ultrasonography of neck and the recommendations by the radiologist.
(f)	In November 2013, P visited D’s clinic complaining of increasing severity of nasal obstruction on both sides for 2 weeks with a “flap” like movement sensation inside his left nostril during breathing, and requested for operation. P also had repeated sore throat, and expressed his wish to treat his obstructive sleep apnea syndrome at the same time. D’s diagnosis after examination was tonsillitis and rhinitis. Since P requested for operation, D explained uvulopalatopharyngoplasty (which included a tonsillectomy and excision of uvula) should be the treatment of choice for obstructive sleep apnea syndrome, but it would be more painful with more risk of complication, and the result would not be long lasting. P preferred tonsillectomy alone, but D explained this was to treat recurrent tonsillitis and snoring, which would not be the best treatment and might not be helpful to his obstruction sleep apnea syndrome (and alternative treatment was tonsillectomy with antibiotics and CPAP). D further advised that the surgical plan for P’s hypertrophic inferior turbinates which caused nasal obstruction was bilateral turbinectomy (and alternative treatment was medications). Fact sheets for tonsillectomy and inferior turbinate reduction were provided and explained to P, which explanation covered relevant risks of the procedures including common side effects and complications as well as uncommon but serious side effects and complications, such as atrophic rhinitis and injury to Eustachian tube for bilateral turbinectomy. Specifically, D explained the Eustachian tube opening was behind the turbinates, and Eustachian tube injury was uncommon with less than 1% risk. P confirmed his understanding and opted for tonsillectomy and bilateral turbinectomy. The 2nd Operation was scheduled for December 2013 with admission to St Teresa’s Hospital the day before.
(g)	In December 2013, P was admitted to St Teresa’s Hospital for the 2nd Operation, ie tonsillectomy and bilateral turbinectomy, to be performed the following day. On the day of admission, D saw P and D again explained to P the nature and risks of the procedures. P signed the consent form for tonsillectomy and bilateral turbinectomy, the consent form for general anaesthesia for such procedures, and a checklist of possible common and important complications for general surgery.
(h)	On the following day, D performed the 2nd Operation under general anaesthesia. Tonsils were removed by diathermy and haemostatis was done, which was followed by bilateral inferior turbinate trimming. Operative findings were bilateral tonsil hypertrophy and bilateral inferior turbinate hypertrophy. The 2nd Operation was uneventful and in D’s usual standard technique. The diagnosis from laboratory examination of the removed tonsils was lymphoid hyperplasia and chronic tonsillitis, and the diagnosis from laboratory examination of multiple fragment specimen of bilateral turbinates was bilateral inferior turbinates with congestion and mild active chronic inflammation. Medications were prescribed for P’s stay in hospital, and several days later nasal packing was removed and P was discharged with medications.
(i)	Later in December 2013, P attended follow up at D’s clinic, and examination showed crusting in both nostrils and healing tonsillectomy wound. Findings of the hospital histology reports were explained. In January 2014, P returned to D’s clinic. He was satisfied with his nose/throat conditions, but had strange smelling in the nose. D removed some crust from the right nostril (which D considered might be the cause of the strange smell), but there was no crust in the left nostril. The tonsillectomy wound had healed. In February 2014, P visited D’s clinic. P was satisfied with his nose/throat conditions, and there was no more strange smell. Examination revealed absence of crust. On all 3 follow up visits, D in accordance with his standard practice performed ear examination, but P did not complain or suffer any blocked ear or hearing impairment, which was an indication that the Eustachian tube function was normal.
(j)	In March 2014, P contacted D and requested to see him on the same day. When P attended D’s clinic, he claimed to suffer from left ear blockage for 2 weeks, but the condition would improve when he was lying down. When he tried to clear his ear by pinching and blowing his nose, it was less effective in the left ear. P had consulted 2 ENT surgeons, the 1st one told him he suffered from OME as a result of direct transection of the Eustachian tube muscle during the 2nd Operation (which was therefore a potential medico-legal case), and the 2nd one performed fiberoptic laryngoscopy (but could not identify the Eustachian tube opening) and told him as he had been advised of such known complication before the 2nd Operation he might not be able to claim against D. D performed endoscopic examination and found P’s left Eustachian tube opening was covered by mucus plug with surrounding scar tissue. Stenosis was suspected, and D told P he was uncertain whether the Eustachian tube opening was patent or blind pit under mucus plug, but the condition was likely to be caused by scarring otherwise the symptoms would have occurred earlier had there been direct transection of the Eustachian tube muscle. D explained he had told P Eustachian tube injury was a known complication when he took consent from P before the 2nd Operation. Upon enquiry, D further explained it was difficult to predict if the condition would progress and be permanent as scarring was a continuous process. D discussed a number of treatment options with P, but after discussions P did not opt for myringotomy with aspiration, myringotomy and grommet insertion and/or surgical revision of Eustachian tube opening. The management plan was to first try medical treatment, and medications were prescribed. P declined further follow up after 21 March 2014.

8.  D denied that in November 2013 P only complained of right nasal obstruction and D only advised tonsillectomy and right turbinectomy without explaining any risk, complication or consequence of a left turbinectomy. D claimed (a) P complained of increasing nasal obstruction on both sides for 2 weeks, (b) examination revealed P had rhinitis and bilateral inferior turbinate hypertrophy with right side more than left side, and the left side was more prominent at the posterior end, and (c) given P suffered nasal obstruction with bilateral turbinate hypertrophy and requested for surgical treatment, D recommended bilateral turbinectomy, which was the treatment of choice for P’s nasal obstruction. D further claimed P did not indicate his intention to have turbinectomy performed on the right side only.

9.  D further denied he said (a) P would not suffer from atrophic rhinitis after the 2^nd Operation, and (b) there would be no risk of injury to the Eutaschain tube. D averred all relevant risks were disclosed, including specifically atrophic rhinitis and risk of injury to the Eutaschain tube, which he explained were uncommon complications.

10.  D averred that from the 2^nd Operation to March 2014 (ie about 3½ months), P did not complain of left ear discomfort (including left ear obstruction, tinnitus or increasing hearing impairment), and did not report/exhibit adverse left ear symptoms during his 3 follow up visits in December 2013, January 2014 and February 2014.

11.  D denied he performed an unnecessary left turbinectomy on P or failed to obtain relevant consent from P for the 2^nd Operation, and further denied he negligently removed the left anterior Eustachian tube cushion (or part thereof) and then negligently cut the left Eustachian tube during the 2^nd Operation. D also denied any causal relationship between his management and performance of the 2^nd Operation and the alleged injury/conditions P now suffers. D claimed repeated infection/ inflammation were likely causes of any Eustachian tube obstruction suffered by P.

IV.  PROCEDURAL HISTORY

12.  As evident from the parties’ pleadings, the alleged indexed medical incidents happened in 2013. P had follow up consultations with D until March 2014.

13.  On 20 October 2016, P by his former solicitors issued pre-action letter against D. On 2 December 2016, P commenced the present action against D for personal injuries as a result of D’s alleged medical negligence outlined above, and claimed for loss and damages as a result of the same.

14.  On 25 January 2017, P’s expert Dr Cheung Kwok Kwong (“Dr Cheung”) compiled his expert report on liability and causation. On 9 March 2017, D’s expert Professor Tong Chi Fai Michael (“Prof Tong”) compiled his expert report on liability and causation.

15.  On 24 July 2017, P served his Statement of Claim, Statement of Damages and Medical Reports (including Dr Cheung’s report dated 25 January 2017). On 13 October 2017, D filed his Defence and denied liability. On 29 December 2017, P and D filed their respective List of Documents.

16.  On 18 December 2017, Master Leong ordered the parties to serve and exchange witness statements as to fact by 13 March 2018. On 16 March 2018, Master Leong extended time to 14 May 2018 for the parties to serve and exchange witness statements as to fact. On 31 May 2018, Master Roy Yu ordered that unless the parties do serve and exchange witness statements as to fact by 4pm on 28 June 2018, the defaulting party shall be debarred from adducing factual witness evidence at trial. These time extensions were to accommodate P’s requests for time indulgence to serve and exchange witness statements as to fact.

17.  On 28 June 2018, P and D served and exchanged their respective witness statement (“P’s WS” and “D’s WS”). P’s WS ran to some 27 pages with 84 paragraphs and 18 appendices.

18.  On 18 July 2018, Prof Tong compiled his supplemental expert report on liability and causation. On 11 September 2018, Dr Cheung compiled his supplemental expert report on liability and causation. On 3 January 2019, Dr Cheung and Prof Tong compiled their joint expert statement on liability and causation.

19.  By the order of Master M Lam dated 10 September 2018, the Checklist Review (“CLR”) hearing was adjourned to 23 May 2019. On 16 January 2019, Dr Cheung and Prof Tong compiled their joint expert report on quantum. By the order of Master M Lam dated 13 March 2019, the CLR scheduled on 23 May 2019 was vacated and adjourned to 9 August 2019. On 25 March 2019, P filed his Revised Statement of Damages (“RSoD”). On 8 May 2019, D filed his Answer to the RSoD.

20.  By the order of Master Grace Chan made at the CLR on 9 August 2019, the next CLR was scheduled to be heard by the PI Judge on a date to be fixed with a view to set the present action down for trial. By my written directions dated 12 August 2019, the next CLR was scheduled to be heard before this court on 23 October 2019. Due to arrangements for mediation, the CLR was re-scheduled to be heard before this court on 25 November 2019.

21.  On 9 September 2019, Prof Tong compiled his supplemental expert report on quantum.

22.  But on 22 October 2019, P filed a summons for leave to serve his supplemental witness statement as per the draft attached to such summons (“Draft”) within 7 days from the date of the order to be made with costs of the application to D in any event (“Summons”). No notice was given to D prior to the Summons in respect of P’s intention to serve any supplemental witness statement, and P did not seek D’s prior consent for adducing his supplemental witness statement.

23.  On 29 October 2019, Master Grace Chan directed that the Summons be heard by this court at the CLR scheduled on 25 November 2019. At the CLR hearing on 25 November 2019, I granted leave for the parties to file/serve affirmations to support and to oppose the Summons, and adjourned the substantive hearing of the Summons and the next CLR to 31 March 2020 to be heard by this court.

24.  On 30 December 2019, P filed his affirmation in support of the Summons (“P’s Aff”). On 17 January 2020, D filed the affirmation of his solicitor Wu Pak Ho Ricky (“Mr Wu”) to oppose the Summons (“Wu’s Aff”).

25.  The scheduled hearing of the Summons and the CLR on 31 March 2020 was generally adjourned due to public health considerations. By my written directions dated 31 March 2020 as revised by my written directions dated 3 April 2020, the Summons and CLR were adjourned to be heard on 10 July 2020 (“Hearing”). By reason of the above matters, the present action had not been set down for trial.

26.  On 6 July 2020, P filed Notice of Change of Solicitors. However, P’s new solicitors had not complied with paragraph 57 of Practice Direction 18.1 as yet.

V.  AFFIRMATION EVIDENCE

27.  P’s Aff was a short affirmation that simply verified that the contents of the Draft were within P’s personal knowledge or were acquired from or based on the sources/documents referred to therein. Wu’s Aff disputed the admissibility of the contents of the Draft on the basis that they were not factual and not part of P’s personal knowledge, but were P’s opinion based on his interpretation of expert evidence and medical literature. Mr Wu said it was not appropriate for P to give evidence to deal with and/or to contradict the evidence contained in D’s WS by way of the Draft after he sighted the parties’ expert evidence and D’s WS.

VI.  LEGAL PRINCIPLES

28.  I have set out the general principles as to the purpose of supplemental witness statements, especially in the post-CJR regime, in my judgment in Million Decade Limited v Tung Fai also known as Dong Hui,[1] but it may be worthwhile to reiterate some of the general principles below.

29.  A party’s pleadings should plead/aver the material facts that support his case and rebut his opponent’s case. Pursuant to Order 18 rule 13 of the Rules of the High Court (“RHC”), any traverse must be specific and not general. But a witness statement as to fact usually comes into existence after close of pleadings, ie when issues have been joined and disputes have been elicited, and is usually a narrative account of the witness’ knowledge of facts and matters that are pertinent to the “live” disputed issues. As explained in Hong Kong Civil Procedure 2020,[2] “the overriding features of the written statements of the witness which may be served pursuant to the direction of the court under [Order 18 rule 2A(2) of the RHC] are:- (1) that they are intended for use at the trial itself; and (2) that they relate to issues of fact to be adduced at the trial”.

30.  Order 38 rule 2A(1) of the RHC makes clear that the exercise of the court’s powers in relation to statement evidence is for:

“the purpose of disposing fairly and expeditiously of the cause or matter before [the court], having regard to all the circumstances of the case, including (but not limited to) –

(a) the extent to which the facts are in dispute or have been admitted;

(b) the extent to which the issues of fact are defined in the pleadings;

(c) the extent to which information has been or is likely to be provided by further and better particulars, answers to interrogatories or otherwise.”

Consequently, witness statements should address the real issues rather than unnecessary issues, and concentrate both the parties and trial judge on the real matters in controversy between the parties.[3] Order 38 rule 2A(2) of the RHC succinctly states that witness statements are “written statements of the oral evidence which the party intends to adduce on any issues of fact to be decided at the trial”.

31.  Order 38 rule 2A(2) of the RHC provides that a party is not allowed to serve witness statements (other than those that the court has given leave) without leave. Although it remains the right/duty of each party to adduce evidence (statement or documentary) to support his case, this reflects the court’s case management control, and parties should note the court will bear in mind Order 1A of the RHC to ensure that any witness statement will serve the underlying objectives of inter alia proportionality, procedural economy, and cost-effectiveness.

32.  The considerations in paragraphs 30-31 above come into play more particularly for supplemental witness statements when the parties have already served at least 1 round of witness statements or more to address the disputed issues. These considerations have been succinctly brought out in the judgment of Bharwaney J in Parsad v Great Wealthy Engineering Co Ltd.[4]

“3. …… However, when the case has progressed to the stage where it has been or is ready to be set down for trial, a late application for leave to file additional witness statements will only be entertained if the signed witness statement containing a statement of truth is furnished to the master in order to enable him to consider the admissibility of its contents, and their relevance and probative value, and to exercise his discretion, either to grant or to refuse leave to rely on the statement, after having regard to its admissibility, relevance, probative value and the underlying objectives of the civil justice reform.

……

5. Whilst parties are generally free to call factual witnesses of their choice and leave is invariably given at the checklist review hearing to the parties to serve or exchange witness statements, the court’s discretion, whether or not to accede to a party’s late application to rely on a witness statement deposing to relevant and admissible facts, must be exercised within the ambit of the court’s management powers and in the light of the objectives of the civil justice reform, including the need to ensure the cost effectiveness of the proceedings; to ensure that the case is dealt with expeditiously; to ensure reasonable proportionality having regard to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party; to ensure procedural economy in the conduct of the proceedings; and to ensure fairness between the parties.

6. Whilst the primary aim is to secure the just resolution of the dispute in accordance with the substantive rights of the parties, and which must include the right of a party to rely on admissible, relevant and probative factual evidence, the court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant for the late application. These matters have to be considered and weighed in the light of and against the underlying objectives of the civil justice reform to ensure cost effectiveness and economy, expedition, proportionality, and fairness between the parties.

7. It is not possible to lay down guidelines to cover and cater for every possible situation that may give rise to a late application for leave to rely on a witness statement; however, the court would have to carefully weigh, in each case, the relevance and probative value of such a witness statement against the potential disruption to trial, prejudice to other parties, and the objectives of civil justice reform. …… Finally, a late application for leave to rely on additional witness statements, that is to say, an application made after the case has been, or is ready to be, set down for trial, will not be considered without signed witness statements containing a statement of truth being furnished.” (my emphasis)

33.  P did not follow the guidance in Parsad in that even though “the case has progressed to the stage where it …… is ready to be set down for trial”, P only submitted the Draft and not a signed version of the Draft with a statement of truth being furnished. However, I will overlook this lacuna on this occasion as P’s Aff verified the contents of the Draft. But practitioners should take note of this in future.

34.  Mr Ko, counsel for P, referred me to Bel Nickel Resources Ltd v Eastbourne Trading Pte Ltd & anor,[5] but I am not persuaded Registrar KW Lung’s decision took the matter any further beyond the principles discussed above. His exercise of discretion to grant leave for supplemental witness statement to be served in that case was much affected by the fact that the plaintiff had already served affirmation evidence with the same contents as the proposed statement evidence so the defendant could not be said to be prejudiced/surprised, and there was explanation for the delay in introducing supplemental statement evidence (ie uncertainty as to whether the witness would give evidence at trial). Neither of these considerations would apply here, and Mr Ko frankly accepted P did not offer any explanation as to why it took him until now to seek leave to serve the Draft.

35.  The guidance that fell from Bharwaney J in Parsad makes clear that first and foremost the supplemental witness statement that a party intends to serve must be admissible, relevant and probative. Logic dictates that any supplemental witness statement intended to be served must satisfy such criteria before the court brings the underlying objectives into the weighing exercise because leave should not be given for any party to introduce inadmissible, irrelevant or non-probative evidence at trial.

36.  Indeed, I find it important to emphasise that the contents of any　statement evidence must be admissible. This is borne out by Order 38 rule 2A(8) of the RHC which states that “[nothing] in this rule shall make admissible evidence which is otherwise inadmissible”. Indeed, Hong Kong Civil Procedure 2020 states that “[incorporation] of inadmissible evidence in a statement served under this rule does not render such evidence admissible ……”,[6] and it goes on to state as follows:[7]

“Accordingly, the written statement of such a witness must contain only such material facts as the witness is able to prove of his own knowledge (cf. O.41, r.5(1) as to the content of an affidavit). The written statement of the witness is the equivalent of the oral evidence which that witness will give if called, in his evidence in chief at the trial (note para.(7)(b)). …… Indeed, the trial judge may direct that the statement served or part of it should stand as the evidence in chief of that witness or part of it (para.7(a) cf. O.38 r.43, putting expert reports in evidence).

……

Again, like the oral evidence of the trial witness, his written statement must not contain any inadmissible evidence (para.(8)). It must not contain any statement of information or belief even if the grounds and reasons thereof are given (see O.41, r.5(2) as to the contents of affidavits for interlocutory proceedings). Unless so stated by the party serving it, the written statement of the witness will not be treated as evidence under the rules relating to hearsay evidence (para.6(6) and see O.38 Pt.III).

Like the oral evidence of the trial witness, a written statement must not contain any expressions of opinion, but be confined to matters of fact.” (my emphasis)

“Paragraph (8) expressly provides that nothing in rule 2A will make admissible evidence otherwise inadmissible. There is accordingly an obligation on the parties preparing witnesses’ statements to be served pursuant to para.(2) above to ensure that they contain no inadmissible evidence. This means that they must take care to omit any statements of information and belief, even if the grounds and sources thereof are given, and any expression of opinion, …… (O.41, r.6). If the statement of a witness should by chance contain such material, it should be corrected as soon as possible ……, or otherwise the opposite party may apply to strike out such material, and, in appropriate cases, for the service of a fresh statement ……” (my emphasis)

37.  The exclusion of inadmissible evidence in statement evidence is readily understandable because under Order 38 rule 2A(7) of the RHC, where the party serving a witness statement calls such witness at trial, the court may direct that his witness statement or part thereof shall stand as his evidence in chief. Thus, the contents of a witness statement must be governed by the same criteria as to admissibility as the oral evidence of a trial witness. Analogy can also be drawn from Order 41 rule 5 of the RHC which states that “an affidavit may contain only such facts as the deponent is able of his own knowledge to prove” unless such affidavit is sworn for the purposed of being used in interlocutory proceedings or is subject to Order 14 rules 2(2) and 4(2) and Order 86 rule 2(1) of the RHC. This is also highlighted by the fact that a witness statement does not obviate the need to comply with the civil hearsay regime for adducing hearsay evidence (see Order 38 rule 2A(9) of the RHC).

38.  In the circumstances, a witness as to fact cannot give statements of information of belief and/or expressions of opinion. The primary objection to opinion evidence by witnesses as to fact is that (a) if the opinion rests on no evidence or inadmissible evidence it is worthless, but (b) if the opinion rests on admissible evidence it usurps the function of the trial judge who is the trier of law and fact. On such basis, non-expert opinion is generally inadmissible. In Parsad, Bharwaney J at page 708 held as follows:

“4. …… I also indicated that, if such a signed statement were to be provided to me, that I might be prepared to grant leave to the plaintiff to rely on the same at trial insofar as Mr Raj spoke in that statement of relevant factual matters such as practices in the work place and wage levels, but that I would not grant leave to allow the plaintiff to adduce into evidence the inadmissible opinion of Mr Raj on whether or not his company would employ the plaintiff if, hypothetically speaking, the plaintiff were now to apply to work for his company. ……”

Further, a lay witness as to fact cannot give opinion on an expert subject upon which competency to form an opinion can only be acquired by special study and skilled experience.

39.  Mr Ko cited Ng Yuk Pui Kelly v Dung Wai Man & ors[8] in which Registrar KW Lung reminded the court to be prudent in the exercise of discretion to strike out impugned parts of a witness statement where such parts may be a mixture of admissible evidence and inadmissible opinion when taking a broad brush approach to strike out such witness statement or the impugned parts “may be unfair to the other party because the court should allow admissible factual evidence of a party to prove or advance his case in the trial”, so “[in] case of doubt, the court should not strike it out and should leave it to the trial judge”.

40.  But I note in Ng Yuk Pui Kelly Registrar KW Lung recognised the court does have discretion to strike out objectionable parts of a witness statement at an interlocutory stage or at trial. Indeed, the learned registrar in that case had no hesitation in striking out certain inadmissible opinion in the plaintiff’s witness statement as to fact (see paragraphs 28-29) (see also paragraph 36 above). Likewise, Allington Investments Corp & ors v First Pacific Bancshares Holdings Ltd & ors[9] cited by Mr Ko concerns the defendants’ application to strike out certain parts of the statements of 2 of the plaintiffs’ witnesses on the ground those parts offended the rules against hearsay. Jerome Chan J said at page 569 that it is open to the court to deal with this issue as an interlocutory matter or as a matter of evidence at trial, and there is no hard and fast rule:

“It would depend on a variety of circumstances, including how far down the line the case has progressed, how close is it to the trial, whether it is necessary to have the dispute resolved in sufficient time before trial to avoid any unnecessary adjournment of trial, whether it is fair and just to have an early resolution of such dispute? If the dispute arose only shortly before trial, it may be that there is little justification for not leaving it to be resolved by the trial judge, as little can be gained from a slightly earlier resolution of the dispute. However, if the dispute relates to an important part of the case, an early resolution of the dispute might be necessary to enable the objecting party to know what evidence he will have to face, and to call in reply at the trial.”

41.  I disagree with Mr Ko that Ng Yuk Pui Kelly is analogous or applicable to P’s application to serve his supplemental witness statement. Ng Yuk Pui Kelly deals with the question of vitality of witness statement (or parts thereof) served pursuant to directions of the court. But here, the parties were not concerned with the 1^st round of witness statements, and P had already served P’s WS pursuant to the directions of Master Leong and Master Roy Yu. Rather, the Summons was P’s application for leave to serve a 2^nd round of statement evidence, and for such purpose P had to persuade the court the supplemental statement evidence he wanted to serve was admissible, relevant and probative. It was therefore incumbent on P to ensure the contents of the Draft were admissible, and he should not attempt to introduce a mixed bag of admissible evidence and inadmissible evidence (if any). This must be a pertinent factor which the court would take into account in deciding whether or not to grant leave for P to serve his supplemental witness statement as per the Draft. This was particularly so when D by his PI Questionnaire dated 11 November 2019 for the CLR hearing on 25 November 2019 alerted P of his stance as follows, which stance was repeated in Wu’s Aff on 17 January 2020:

“K1. (1) …… The [Draft] also contains a number of references to expert evidence and refers to medical literature and references. …… [D] cannot agree that the contents of the [Draft] are purely factual. They contain opinions of [P] after he had sight of the parties’ expert evidence and [D’s WS].”

Further, at the hearing on 25 November 2019, this court also urged P to give fair consideration to D’s complaints. Thus, P had more than half a year to re-visit the Draft (if he wished), and (if the Draft contained any inadmissible, irrelevant or repetitive matter) to submit a revised draft supplemental witness statement for consideration.

42.  There are other factors that impact on the relevant exercise of discretion. Even though the court has power to grant leave for supplemental witness statement to be served, proper conduct of litigation does not mean having rounds of witness statements for point by point “rebuttal” of the opposing witnesses’ statements. After all, it is not the function of witness statement as to fact to argue a party’s case or to argue with opposing witness(es). I agree with the observations in Hong Kong Civil Procedure 2020 that:[10]

“The written statement of a witness should not seek to anticipate the evidence of a witness of the opposite party and to contradict it or otherwise to deal with it. It is not the function of the written statement of a witness to answer questions that may be put in cross-examination, but only to answer such questions as would be asked in his examination in chief. ……”

Indeed, G Lam J in Zebra Industries (Orogenesis Nova) Ltd v Wah Tong Paper Products Group Ltd said as follows:[11]

“12. Further, the supplemental statements, which were prepared together with the summons in July 2014, contain matters which have since been superseded and become irrelevant, ……

13. Much of what is in the supplemental witness statements is mere commentary on or argument relating to the defendant’s evidence, which has no place in a witness statement.

14. There are also other parts of the supplemental statements that are repetitive of what is already in the other material, needless quotations, simply abusive remarks about the defendant and its representatives, or otherwise passages that are of no relevance or consequence.” (my emphasis)

43.  This explains why, as envisaged under Order 38 rule 2A(4)(c) of the RHC, the usual practice is for parties to exchange witness statements simultaneously. After all, it is not the function of witness statements to “rebut” points made in the statements of opposing witness(es) for the sake of having the “last word”.

44.  I also agree with the observations by G Lam J in Liu Wai Keung v Liu Wai Man also known as Liu Hiu Nam Vikki[12] that if a supplemental witness statement is of little probative value, its relevance to the matters in issue in the action is tangential, it simply repeats what has already been stated in the 1^st witness statement, or it seeks to anticipate the argument of the opposing party and to deal with it, “it would be an unwarranted distraction from the real issues to allow the supplemental statements to go in and to require the [opposing party] to deal with it”.

45.  Mr Ko referred to Chui Pui Kun v Chui Wai Kwan[13] to suggest that even if certain parts of a proposed supplemental witness statement overlapped with existing witness statements, this would not be fatal to the application for leave to serve the proposed supplemental witness statement, and the court would not allow time/costs to be incurred for “editing” the proposed supplemental witness statement so long as it would not prolong the trial unnecessarily.

46.  With respect, I am not persuaded Chui Pui Kun is helpful on facts and on principle. First, the overlap of contents referred to in that case was between the existing witness statement of the defendant and 2 proposed witness statements by 2 further witnesses. The main consideration in allowing such further statements was the plaintiff’s criticism against the hearsay contents of the defendant’s witness statement which was to be supplemented by the proposed statements of these 2 further witnesses who would give their own primary accounts of the subject matters. On such basis, it was readily understood why there would be overlap in contents, and why it would not be right to “edit” the further witness statements. But that does not mean it is right for the same witness to repeat in his own proposed supplemental witness statement what he has already stated in his first witness statement.

47.  Secondly, if the draft supplemental witness statement simply repeats what has already been stated in the 1^st statement by the same witness, I do not agree with the learned registrar that leave should be granted for the party concerned to adduce the supplemental witness statement in such unsatisfactory form for the impugned parts to be dealt with at trial. Time is precious and costly at trial, and should be incurred for the trial proper and not for such exercise. There is also no reason for the court to engage in any “editing” for the party concerned. Rather, it is for the party concerned in seeking leave from the court to serve supplemental witness statement to ensure the draft supplemental witness statement he places before the court is admissible, relevant and probative, and is not merely tangential and repetitive of what he has said in his earlier witness statement. If a party fails to do so, he runs the risk of the court dismissing the application. In such situation, the party seeking to serve the supplemental witness statement cannot be said to suffer real prejudice if it is not allowed, especially when he has the time/opportunity to put in a revised draft that does not raise the concerns referred to above.

48.  Mr Ko referred to concern over constraints on amplification of witness statement at trial under Order 38 rule 2A(7) of the RHC in the absence of a supplemental witness statement on the basis that witnesses will generally be confined to the contents of their witness statements, and that courts are not likely to allow amplification too readily (as it may encourage witness statements not to deal with important issues). In my view, such concern is misplaced. First, if leave is refused for a party to adduce supplemental witness statement or parts thereof on proper grounds as outlined above, there is no cause for complaint. But should it transpire that matters canvassed in the rejected draft supplemental witness statement or parts thereof become material by the time of trial due to developments in the litigation, there may perhaps be basis to persuade the court to grant leave to amplify the existing witness statement. This would also give witnesses greater flexibility and discourage over-elaborateness of witness statements and resulting excessive costs. After all, the court has a general discretion to allow a witness to go beyond the contents of his witness statement if there is “good reason” not to confine the evidence to the contents of his witness statement.[14]

49.  That said, there are bound to be cases where supplemental witness statements are probative and necessary. The exercise of case management discretion is obviously case-specific, so the application of the aforesaid broad principles may not lead to the same result in every case. One can envisage supplemental statement evidence may be required if (a) pleadings are amended after the 1^st round of witness statements to raise new issues or if there is a need to respond to freshly discovered documents after the 1^st round of witness statements, and/or (b) without prejudice to the opposite party, a witness needs to fill in gaps in his own witness statement which may otherwise exist in presenting the case to the trial judge as trier of fact.[15] Such list is not and cannot be exhaustive.

50.  On the basis of the aforesaid principles, I turn to the Summons.

VII.  DISCUSSION

51.  The Draft was divided into 6 parts, and I will deal with them accordingly.

(a) Paragraphs 5-6

52.  In paragraph 6 of the Draft, P quoted the expert opinion of Dr Cheung in his report dated 25 January 2017 in respect of the medical effect of the 1^st Operation to purportedly clarify and supplement paragraph 30 of P’s WS. Dr Cheung’s expert report (to be adopted by him when he would give oral evidence at trial) would be there for all to read at trial, and it would be a matter of submissions rather than witness evidence on whether the opinion in Dr Cheung’s report would support P’s WS. In my view, expert opinion should not find its way into any witness statement as to fact. Paragraphs 5-6 of the Draft should be disallowed.

(b) Paragraphs 7-10

53.  In paragraphs 7-10 of the Draft, P drew on Dr Cheung’s expert opinion in his report dated 25 January 2017 and the medical records in relation to the 2^nd Operation to explain what he perceived to be the scope of the medical procedure performed under the 1^st Operation. Not being a skilled doctor, it was not for P to interpret the medical records/expert opinion and to form his own opinion as to the scope of the 1^st Operation, eg how much of the left inferior turbinate and the right inferior turbinate was removed. This, in my view, was impermissible opinion or expert opinion evidence by a witness as to fact, and hence paragraphs 7-10 of the Draft should be disallowed.

(c) Part One – paragraphs 11-49

54.  As evident from the heading for Part One of the Draft and as confirmed by Mr Ko at the Hearing, the whole of Part One was to address the following issue: “Was the description of “mild hypertrophy of IT [inferior turbinate] of the tip”, as written in the Consultation Note (see Appendix 6), referring to the left or right side? Or both sides?” This issue came about because in paragraph 30(1) of P’s WS P stated as follows: “Consistent with the records “mild hypertrophy of IT [inferior turbinate] at the tip” by Dr Ambrose Ho [who performed the 1^st Operation] and/or “Prominent posterior end of IT [inferior turbinate]” by [D], [P] had a “flap” like movement and sensation in [his] right nostril”. P claimed he had second thoughts on this point afterwards, and believed that at the time when he made P’s WS he misunderstood the description of “mild hypertrophy of IT at the tip” as referring to the right inferior turbinate when it should be referring to the left side. In short, P wished to reverse what he stated in P’s WS.

55.  In paragraphs 11-49 of the Draft, P purported to give reasons for such reversal by setting out his interpretation of and opinion on the medical records, his opinion on expert medical matters based on his search of information via the internet, and his views on how the medical records would support his complaints and contradict D’s evidence. Not being an expert medical man, P could not give any opinion, interpretation and analysis of medical matters in the medical records/research, which plainly must be a matter for the medical experts and eventual submissions at trial. Mr Ko suggested P “would like to clarify his thoughts” (my emphasis) through the Draft, and as a witness as to fact his “thoughts” on skilled medical matters would have no place in his statement evidence.

56.  Mr Ko submitted Part One of the Draft was to correct a mistake in P’s WS. But in my view, there was a straightforward and, more importantly, fundamental solution to P’s concern. For this, it would be necessary to return to the origin of alleged mistake in paragraph 30(1) of P’s WS. Essentially, P claimed the mistake was his erroneous assertion that the condition of his right nostril was “[consistent] with the records “mild hypertrophy of IT [inferior turbinate] at the tip” by Dr Ambrose Ho [who performed the 1^st Operation] and/or “Prominent posterior end of IT [inferior turbinate]” by [D]” (“Mistaken Phrase”). I find in the first place it was not for P as a lay witness as to fact to interpret and/or opine on whether the medical conditions recorded in the medical records made by Dr Ambrose Ho and D were consistent with the condition of his right nostril, and the Mistaken Phrase should not have found its way into P’s WS at all. Mr Wu had no objection for the Mistaken Phrase to be struck out and expunged from P’s WS, and I could not see why P would have any objection since his current stance was that the Mistaken Phrase was an error or a mistake.

57.  Once the Mistaken Phrase is struck out and expunged, there will be no more mistake to support the introduction of Part One of the Draft. Mr Ko tried to maintain Part One of the Draft by anticipating that D might cross-examine P on his “mistake” at trial notwithstanding the removal of the Mistaken Phrase. But in my view, this could not be any viable basis to justify Part One of the Draft. There was no certainty that D would cross-examine P on this topic at trial, but even if there were such cross- examination, P could give any explanation he saw fit and would not be stifled in his testimony. But if witness statements are allowed to anticipate cross-examination, they will become hopelessly over-elaborate and costly, which flies against the underlying objectives of saving costs, procedural economy and proportionality. This explained why it has been said it is not the function of the written statement of a witness to answer questions that may be put in cross-examination or to anticipate, contradict or deal with the evidence of the opposite party (see paragraph 42 above).

58.  In the circumstances, I direct that the Mistaken Phrase be struck out and expunged from P’s WS, and consequently Part One (ie paragraphs 11-49) of the Draft should be disallowed.

(d)  Part Two – paragraphs 50-73

59.  Mr Wu took exception to paragraphs 51-59 of the Draft on the basis that they set out P’s own belief and/or information according to his analysis and interpretation of the medical evidence in Dr Tang’s 1^st medical report and in the medical records. Quite plainly, these paragraphs were quite inadmissible and impermissible.

60.  Paragraphs 52-54 of the Draft provide a clear and obvious illustration:

“52. A copy of the Operation Record of Sleep endoscopy dated 29^th June 2009 is attached to this Statement as ‘Appendix 26’. The findings of the sleep endoscopy marked on the Operation Record dated 29^th June 2009 were as follows:

mild OSAS AHI 16.

Previous turbinectomy.

No snoring noted.

Mild retropalatal collapse <25%.

Lateral wall and tongue base no collapse.

53. If ‘mild OSAS AHI 16’ was one of the findings from the sleep endoscopy that I underwent on 29^th June 2009, there would be contradictions between the two findings: ‘mild OSAS AHI 16’ [mild Obstructive Sleep Apnea syndrome] and ‘no snoring noted’.

54. …… Meanwhile, the findings of ‘Mild retropalatal collapse <25%’ and ‘lateral wall and tongue base no collapse’ in the sleep endoscopy referred to no collapse and obstruction problems at the part of the throat caused by the relaxation in the muscular structure while breathing during sleep.”

The operation record of the sleep endoscopy was part of the documentary evidence, and its contents did not have to repeated in P’s statement evidence. But the opinion and interpretation expressed in respect of the medical evidence in paragraphs 53-54 of the Draft were clearly inadmissible as they were beyond what P as a witness as to fact could give evidence on. Indeed, at the Hearing, Mr Ko was constrained to accept these paragraphs were not admissible to prove the truth of the matters and opinion stated therein.

61.  Mr Ko then suggested paragraphs 51-59 of the Draft were a prelude to introduce the factual matters stated in paragraph 60 of the Draft to make such paragraph more understandable to the reader. I disagree. First, I cannot see how 9 paragraphs of inadmissible opinion/evidence should be allowed to introduce 1 paragraph of factual matters. Time and opportunity had been given to P (if he so wished) to recast the Draft to make it readable on the basis of admissible, relevant and probative evidence, but P had chosen not to do so and so could not complain that removing inadmissible parts of the Draft would affect the flow in reading the remaining parts. Secondly, I have read paragraph 60 of the Draft on its own, and had no difficulty in understanding the factual matters stated therein (ie what happened at the post-sleep endoscopy consultation with Dr Ambrose Ho in August 2009), which in my view required no introduction. Thirdly, Mr Ko’s true concern appeared not to be about understanding the factual matters stated in paragraph 60 of the Draft, but about how such factual matters could be presented as support for P’s contention as elaborated in paragraphs 51-59 of the Draft. But it is not the function of witness statements to argue a party’s case or to anticipate, contradict or deal with the opposite party’s case (see paragraph 42 above), and witness statements cannot usurp the function of submissions at trial. In my view, paragraphs 51-59 of the Draft should be disallowed.

62.  Mr Wu complained that paragraph 61 of the Draft was impermissible interpretation of medical records. I disagree. In that paragraph P merely said that even though the term “Friend of Dr Ho Fung” was noted in the medical records in respect of the consultation with Dr Ambrose Ho on 4 August 2009, he did not say that to Dr Ambrose Ho, and he was unaware Dr Ambrose Ho made such record. This must be a factual matter.

63.  Mr Wu objected to paragraphs 65-73 of the Draft, which purported to raise query over the diagnosis of sleep apnea at the consultation with D in February 2012 on the proposition that P was only suffering from nasal obstruction. I agree with Mr Wu that paragraphs 65-68 of the Draft were objectionable as they set out the opinion, interpretation and analysis of P (as a witness as to fact) as to the aetiology of sleep apnea and the operation of the sleep apnea machine as treatment option for such medical condition. None of these paragraphs related to P’s personal condition. In my view, paragraphs 65-68 of the Draft should be disallowed.

64.  As regards paragraphs 69-73 of the Draft, I find the following sentences objectionable as medical opinion, analysis and interpretation given by P as a witness as to fact:

“69. …… I would not say that I suffered obstructive sleep apnea for the entire night because I did not sleep at all on that night.

70. …… In this case, I also would not say that I suffered obstructive sleep apnea because I was not sleeping at all at that moment.

71. All the videos I took with my mobile phone only showed that I was suffering from nasal obstruction. However, the causes of the nasal obstruction remained unknown to me.”

Whether P’s recorded sleep condition on 17 June and 14 July 2013 amounted to the medical condition of obstructive sleep apnea was a matter for the treatment doctors (if they were consulted on the same) and/or for the medical experts. It was not for opinion or interpretation by P. It was also not for P as a witness as to fact to say his condition as recorded was medically nasal obstruction and not obstructive sleep apnea. In my view, the aforesaid parts of paragraphs 69-71 should be disallowed.

(e) Part Three – paragraphs 74-105

65.  In paragraph 77 of the Draft, P described what transpired at the consultation with D in November 2013. P explained D examined him with an endoscope and said in Chinese that “The right side is big! The left side is fine! One more incision on the right side!” These were factual statements. In my view, what was objectionable was P’s assertion as to the then medical condition of his nasal turbinates, ie what D said in Chinese referred to above is “consistent with [his] condition after the [1^st Operation]”. I find the last sentence of paragraph 77 of the Draft should be disallowed.

66.  Mr Wu objected to paragraphs 80 and 83-85 of the Draft on the basis that they were statements of P’s own belief. I disagree, and consider those paragraphs referred to factual matters. Paragraph 80 of the Draft in stating that it was unnecessary for D to ask P to make another trip to his clinic on 23 November 2013 logically followed from the statements in paragraphs 78-79 of the Draft that P visited D’s clinic the day before (ie 22 November 2013) and was told to come back the following day since a long explanation was required for the surgical option, but it turned out that D did not give any detailed explanation the following day and did not use the clip taken with the endoscope to give explanation. As for paragraphs 83-85 of the Draft, P explained why he raised questions with D at the consultation in November 2013, and in my view his explanation was grounded on factual matters, ie his dialogue with D during the consultation in June 2009, and D’s explanations to him in June 2009. These must be factual matters.

67.  In respect of paragraph 89 of the Draft, P explained he told the nurse-on-duty he suffered from “rhinitis” for the past 2 weeks. Mr Wu suggested the following sentence was inadmissible:

“However, the nurse-on-duty probably heard ‘sinusitis’ (鼻竇炎) by mistake. Meanwhile, she also wrongly spelt the condition as ‘sinnitis’, when the correct spelling should be ‘sinusitis’. A copy of the Admission & Discharge Assessment (Adult) is attached to this Statement as ‘Appendix D’.”

Mr Wu suggested the above assertions were speculation and not fact. However, I am unable read such difficulty in these sentences. As P claimed he told the nurse he had “rhinitis”, and the form stated “sinnitis” which sensibly would refer to “sinusitis”, this logically meant the nurse heard wrong.

68.  Mr Wu submitted that paragraphs 96-97 of the Draft were speculative, and contained P’s own belief/information according his own opinion and analysis. I need not repeat the contents of paragraphs 96-97 of the Draft as Mr Ko readily accepted they were rhetorical questions. I find they have no place in a witness statement as to fact, and it would be up to counsel to raise such matters (if so wished) in submissions at trial. In my view, paragraphs 96-97 of the Draft should be disallowed.

69.  As for paragraph 98 of the Draft, P stated as follows:

“If [D] did not say on 23^rd November 2013 that my nasal obstruction was due to ‘regrowth of turbinate’ and instead commented the surgery performed by Dr Ambrose Ho in 2007 was ‘in fact not done that well, actually the cut was not very straight, and Dr Ambrose Ho in fact missed out a lot in removing the turbinate in 2007 – just that I did not tell you in 2009 and 2012’, I would not have let [D] operate on me in 2013.”

Mr Wu submitted this was speculative. I disagree. In a nutshell, such statement set out P’s witness evidence as to why he allowed the 2^nd Operation by D, and the reason was what D told him. He also explained what would not have swayed him into decision to proceed with the operation.

70.  Mr Wu objected to paragraphs 103-105 of the Draft on the basis that paragraphs 103-104 repeated what he had said before and hence were redundant, and paragraph 105 was inadmissible because P would not be in a position to comment on what was captured from the internet. I disagree. These paragraphs described what P did overnight at the hospital in December 2013. In paragraph 102 of the Draft P stated that night at the hospital he “took photos of phone screen for the pictures of nasal cavity and turbinectomy” from the internet, and in paragraphs 103-104 P recalled what D told him in November 2013 when D examined him with an endoscope (ie one more cut to the right), so even though D did not know where the incision would be made (ie paragraph 104), he was comforted by the screen shots he took because it appeared the Eustachian tube was far away from the turbinate and was concealed. In my view, these were matters of fact rather than opinion. Paragraph 105 of the Draft was not to prove as a matter of fact where the Eustachian tube was located, but what gave P comfort in the night before the operation.

(f) Part Four – paragraphs 106-115

71.  Paragraph 112(b) of the Draft concerned P’s follow up with D in December 2013. P referred to blood clot his left nostril, and went on to say that: “The status of the blood clots reflected that there continuous seeping of blood or bleeding inside my nasal cavity, because those blood clots were all along moist, soft, and not dried”. Mr Wu suggested P would not be in a position to comment on such matters. However, I do not see P’s such statement as any comment on medical condition. According to P, he could visualise the blood clots in his nasal cavity as evident from the photographs he took, and he was able to say from personal experience that the blood clots were “moist, soft, and not dried”, and that being the case it naturally followed there was still active bleeding inside his nasal cavity. In my view, this must be a factual matter which P could say from own experience.

72.  Mr Wu complained that paragraph 113 of the Draft set out P’s belief as per his own opinion, analysis and/or interpretation of P’s medical condition, rather than any matter of fact. By this paragraph, P was actually giving an opinion that the active bleeding was from “the wound at the left Eustachain tube” which P claimed “had not healed”, and not from the wound on the turbinate. In my view, such opinion evidence on medical matters was impermissible and inadmissible. It would be a matter for the medical experts to identify the source of active bleeding as a matter of expert opinion based on their skill and experience. But it was not for P to say that an unhealed wound from resection of the turbinate would “bleed every day”, that bleeding from an unhealed wound at the turbinate would coagulate in clots sufficient to result in blockage of airway in the nostril, that the rear part of the nasal cavity had sufficient space for coagulated blood clots from a wound at the opening of the Eustachian tube to accumulate, that accumulated blood clots in the rear part of the nasal cavity would be too deep to be washed away by saline solution, and that blood clots would only fall into the throat when they were mature. These statements were plainly medical opinion in respect of which P as a witness as to fact could not address.

73.  Mr Ko submitted P should be able to say what he thought about his own body. But even through the victims in most medico-legal cases would suffer physical or bodily harm from negligent procedures, this did not mean such plaintiffs in medico-legal cases could give views on medical matters with impunity. In any event, the opinion expressed in paragraph 113 of the Draft being medical/expert opinion would have been inadmissible, and consequently would not have been relevant/probative. In my view, paragraph 113 of the Draft should be disallowed.

(g) Part Five – paragraphs 116-127

74.  In paragraph 123(a) of the Draft, P stated that in the course of the nasal-endoscopy as seen in the video-recording, “I saw that the internal structures of my left nasal cavity looked greatly different from that of my right one. I could hardly believe that could possibly be resulted from some other cause”. In stating what he observed and believed from actually visualising the endoscopy in the video-recording, P was stating what he saw and what he believed from what he saw at the time. These would be factual matters, and I disagree with Mr Wu’s suggestion that only a medical expert could speak on the same. Whether P was medically correct in his statements would be a separate matter.

75.  Mr Wu objected to P’s statement in paragraph 127 of the Draft that upon hearing what D said (as set out in paragraph 126 of the Draft), “[D] seemed to think that there was still a chance for a favourable turn that [P] would still believe in what he said”. I agree with Mr Wu that this was speculative surmise, and should not be allowed.

(h) Part Six – paragraphs 128-131

76.  I do not see any reason why P could not state “[photo] of screen capture for Eustachian tube in relaxed and opened state took on 19th March 2014 at 12:40 is attached to this Statement as “Appendix 36”” in paragraph 129 of the Draft. This would be a statement of fact.

77.  Paragraph 131(a) of the Draft concerned a telephone conversation between P and D with D asking P to go to a hospital for a special operation to open the Eustachian tube. P stated he felt unsafe that D suddenly offered to arrange such operation, and he did not take up D’s suggestion. P explained he felt doubtful of the safety and efficacy of the proposed procedure because he surfed the net after his last consultation with D in March 2014 to try to understand his condition and learned from such exercise that he had lost the excretory tool for the middle ear, and that there was risk of death due to possible injury to the carotid injury near the Eustachian tube.

78.  Mr Wu criticised such statements as P’s interpretation, analysis and opinion on medical matters, and further complained against P making references to medical literature and stating medical information extracted therefrom. I disagree. The medical literature and information therefrom as stated by P in paragraph 131(a) of the Draft (even if allowed as part of P’s supplemental witness statement) would not amount to any admissible evidence/proof of those medical matters at trial since such matters must be within the realm of expert medical opinion. In my view, P was entitled to refer to the fact he surfed the internet, and read the medical literature accessed via the internet from which he obtained some medical information (whether rightly or wrongly) which led him to be skeptical about D’s proposed surgery. The truth of the contents of the medical literature would be immaterial for such purpose, and I expect little if any time at trial would be spent on the contents of such medical literature. Indeed, it would be legitimate for D to object if P were to go into any depth about such medical information in his evidence at trial.

79.  However, I agree with Mr Wu that paragraph 131(e) of the Draft was speculative surmise, ie that “[P] suspected that [D] already knew that there was something wrong with the operation which [D] denied”, and should be disallowed.

80.  In paragraph 131(j) of the Draft, P stated he did not see D between November 2013 (when he left D’s clinic) and December 2013 (when he went into the operating theatre). P went on to say as follows:

“So, when I asked [D] about what he said regarding the risks of the surgery, I would only be referring to the time at [D’s] clinic on 23^rd November 2013.”

I cannot see how this sentence could be said to be speculative. Given that P and D had not met since the consultation in November 2013, P’s explanation that his query directed to D would be about what D told him at the consultation in November 2013 must be a matter of fact and not surmise.

81.  I also see nothing objectionable in P saying in paragraph 131(n) of the Draft that he reminded D that D had not mentioned to him about the “nature” or “content” of the risk of injury to the Eustachian tube, and as D had CCTV recording in his clinic, D “could have taken out the recording” as proof “[if D] did say that”. Again, such statements would be factual matters.

82.  As for paragraph 131(o) of the Draft, P stated that after listening to what D said, he told D he found on the internet information on the mechanism for opening and closing the Eustachian tube, and “[by] looking at the photos, [P] noticed that a whole section of the tissue was missing. Who would have done that if it was not caused by [D]”, and after hearing what P said D gave a reply. Mr Wu submitted P was not medically qualified to give medical opinion on what could be discerned from the photographs. I had no quarrel with the proposition that P could not give medical opinion as evidence to prove the truth of the matter, but he could give evidence as to what he told D (irrespective whether he was right or wrong about “a whole section of the tissue was missing” as caused by D).

(i) Appendices

83.  Mr Wu objected to various appendices to the Draft:

(a)	appendices 19, 21-27 and 29: Mr Wu suggested it would be redundant to append P’s medical records/reports to the Draft since these documents were already disclosed in the parties’ respective List of Documents, and a large number of them would fall away as P should not be allowed to give his own opinion and interpretation on medical matters;
(b)	appendices 20 and 30-31: Mr Wu claimed these were medical diagrams which were not matters of fact that P could prove from his own knowledge;
(c)	appendices 28 and 32-36: Mr Wu complained that such photographs and video-clip had not been previously disclosed by P.

84.  In my view, following my rejection above of certain parts of the Draft, the number of appendices would be reduced by consequent removal of appendices 19-26 of the Draft. As for the other appendices, in principle it is unnecessary to append documents to a witness statement if they are clearly identified in the body of the statement itself. Oftentimes, indiscriminate inclusion of appendices serve only to encumber the witness statement, and to lead to eventual duplication of documents in the trial bundle. However, given the way the Draft was prepared, it would be difficult to excise the remaining appendices from the remaining parts of the Draft without adversely affecting the readability of the statement. But if, at the end of the day, the inclusion of the remaining appendices would lead to unnecessary costs, it would be open for D to seek appropriate costs order to reflect the same.

(j)  Summary

85.  From the above analysis of the Draft, it would be seen that the parts which I consider should be disallowed were essentially contents that were not factual matters from P’s own knowledge, but his opinion/interpretation of expert/medical evidence, his speculative surmises, and/or his attempts to argue his own case or to contradict D’s case. As a lay witness as to fact without medical training, it would be impermissible for P to address in his supplemental witness statement such matters which he could not have given oral evidence at trial. In my view, these impermissible parts of the Draft were inadmissible, irrelevant and not probative, and leave should not be granted for P to serve statement evidence in relation to such parts.

86.  It had been suggested that such “editing” would make the remaining parts of the Draft less readable or intelligible. But in my view, it lied ill in the mouth of P to so complain when, as explained in paragraph 41 above, P had been alerted to D’s complaints about the Draft and had months to recast the Draft in a way which D could possibly consent or which the court could possible allow, but P chose not to do. Anyway, I have read the Draft by putting aside the impugned parts, and find the flow and sense of such redacted Draft would not be so detrimentally handicapped as Mr Ko would have this court believe.

(k)  Other considerations

87.  That said, it would not immediately follow that upon severance of the impugned parts of the Draft as explained above, leave would ipso facto be granted for the remaining parts. As explained in Part VI above, there were other considerations.

88.  As Mr Ko was constrained to accept, P did not offer any explanation for the delay in taking out the Summons when expert evidence on liability, causation and quantum had been obtained, the usual round of witness statements had been completed (more than 2 years ago), and the present action was ready to be set down for trial but for the Summons. Undoubtedly, the Summons was a late application.

89.  But that said, no trial date had been fixed as yet, and no adjournment of any milestone date would be required. Mr Ko assured the court D would be protected in costs as P would bear costs of and occasioned by the Summons. This court warned of a possible need for further round of expert reports. A key area of dispute on the question of liability was whether there was properly obtained informed consent for the 2^nd Operation. Given that the remaining parts of the Draft sought to pad P’s evidence in this respect, the parties should carefully consider whether Dr Cheung and Prof Tong should be jointly asked to render updated opinion based on updated factual assumptions premised on P’s supplemental witness statement in the form if and as allowed. But in the present context, such prejudice to D would be somewhat mitigated by Mr Ko’s assurance that D’s costs for another round of expert evidence (if needed) would come within the scope of costs of and occasioned by the Summons which P would bear.

90.  Here, taking into account the remaining parts of the Draft, which I accept were relevant to the disputed issues, D’s entitlement to serve witness statement in reply, D’s right to seek further round of expert evidence to address the fresh factual allegations by P, and the opportunity for D to cross-examine P on the matters in the remaining parts of the Drafts at trial, there was basis on this occasion to allow P to serve the remaining parts of the Draft as his supplemental witness statement. I take note that the contents of the remaining parts of the Drafts were admissible, factual and relevant to the disputed issues, and that at the Hearing Mr Yu shied away from saying whether or not D would object to P amplifying P’s WS on such matters at trial. In my view, permitting P to serve his supplemental witness statement with the impugned parts removed would allow P to fill in gaps in his statement evidence and facilitate a just resolution of the dispute between the parties. But I hasten to say such conclusion was case-specific and would not set any precedent.

91.  Nevertheless, parties should take note that in future the court is unlikely to smile kindly on any late application for leave to serve supplemental witness statement without cogent reason for the delay. Parties herein should also note that the court expects there would not be any further round of witness statements, and P must banish any thinking that he ought to have the “last word” upon sight of D’s witness statement in reply (if any).

VIII. CONCLUSION

92.  I therefore grant the following orders:

(a)	within 7 days from the date hereof, P’s solicitors do comply with paragraph 57 of Practice Direction 18.1 to file the completed certificate as per Appendix D of such practice direction;
(b)	the phrase “Consistent with the records “mild hypertrophy of IT at the tip” by Dr Ambrose Ho and/or “Prominent posterior end of IT” by the Defendant,” in paragraph 30(a) of P’s WS (ie the Mistaken Phrase) be struck out and expunged from P’s WS;
(c)	no later than 7 days from the date of this order, P shall serve on D redacted P’s WS with the Mistaken Phrase redacted and struck out;
(d)	leave be granted for P to serve within 14 days from the date of the date of this order P’s supplemental witness statement as to fact as per the Draft save and except that the following parts are to be redacted and struck out from the Draft: (i) paragraphs 5-10 of the Draft; (ii) Part One – paragraphs 11-49 of the Draft; (iii) Part Two – paragraphs 51-59, 65-68, the last sentence of paragraph 69, the last sentence of paragraph 70, and paragraph 71 of the Draft; (iv) Part Three – the last sentence in paragraph 77 and paragraphs 96-97 of the Draft; (v) Part Four – paragraph 113 of the Draft; (vi) Part Five – the phrase “the Defendant seemed to think that there was still a chance for a favourable turn that I would still believe in what he said.” in paragraph 127 of the Draft; (vii) Part Six – paragraph 131(e) of the Draft; (viii) appendices 19-26 of the Draft;
(e)	leave be granted for D to serve D’s supplemental witness statement and/or any further or additional witness statement as to fact in reply to P’s supplemental witness statement within 28 days thereafter;
(f)	no later than 56 days from the date hereof, the parties shall jointly write to the court on the following: (i) lodge a copy of P’s supplemental witness statement (without appendices); (ii) lodge copies of D’s supplemental witness statement (if any) and/or further or additional witness statements as to fact (if any) served by D; (iii) state whether further expert report on liability and causation is required by reason of the statements served pursuant to (d)-(e) above, and if so, state the expert issues required to be addressed by the experts to be included in joint instructions to the parties’ experts for them to compile further joint report; (iv) propose all necessary and appropriate case management directions; (v) propose a time period for restoring the present action for CLR.

93.  Parties should well note the reminder by Bharwarney J in Yeung Lai Ping v Secretary for Justice that even though the parties do not lose their right of private access to their nominated experts on the issues of liability and causation by reason of the experts’ without prejudice meeting and joint statement, “[that], of course, does not mean that parties enjoy a carte blanche approval to obtain reports from liability experts and to call them to give evidence because the matter is still subject to leave of the court …… They have a right to apply to the court for leave to adduce expert evidence but, ultimately, the decision rests with the court whether or not to grant such leave”.[16]

94.  On the matter of costs, given the provision for costs in the Summons and Mr Ko’s assurance as to the costs position as explained above, I order P to pay D costs of and occasioned by the Summons (including all costs reserved if any) to be taxed if not agreed. For the avoidance of doubt, this is an order absolute.