WONG GILES v. DONOWHO SIMON CHRISTOPHER AND ANOTHER

HCPI 1046/2014

[2019] HKCFI 1803

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1046 OF 2014

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D E C I S I O N

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The applications

1.  This is the Pre-Trial Review of the trial of this action scheduled to commence on 22 October 2019.  Apart from the usual matters that need to be dealt with during PTRs, there are before me two applications by the plaintiff (“P”):

(a)  via summons of 4 July 2019, for leave to file and serve the affirmation of Shirley Mae Leimomi Wong (“Mrs Wong’s Aff” and “Mrs Wong”) dated 22 August 2018 and to rely on the same as evidence at the trial; and

(b)  via the PTR Form dated 4 July 2019 (but otherwise subject to no summons), for an order that certain specified parts of the following affirmation and witness statements (the “ImpugnedParagraphs”) “be expunged for the purpose of the trial of [P’s]claim”:

(i)  the witness statement dated 8 October 2015 of the 1^stdefendant (“D1”);

(ii)  the witness statement and affirmation dated 8 October 2015 and 25 July 2014 respectively of D1’s wife; and

(iii)  the witness statement dated 25 August 2015 of the 2^nddefendant (“D2”).

The facts and P’s claim

2.  The facts may be briefly stated as follows.  P and Ds are neighbours in the vertical sense.  According to P’s Statement of Claim (with emphasis added):

(a)  he and his wife at the material times occupied an apartment on the 4^th floor of Pearl Gardens (“P’s Apartment”), whilst D1 and D2 with their respective families each occupied an apartment on the 5^thfloor and 6^thfloor respectively (§§3 – 5);

(b)  Since 2005, P has been disturbed by noises resembling those of uncontrolled screaming of children and loud and sharp thuds against the ceiling of P’s Apartment (§6);

(c)  The disturbances exacerbated upon the birth of D1’s youngest child in 2009 (§7);

(d)  By early 2011, the disturbances had culminated in various complaints made by P to the manager of the building and cross-complaints from D1 “for alleged excessive noises from the television and/or radio (which are denied) emanating from [P’s] Apartment” (§8);

(e)  “In about December 2013, [D2] joined [D1] in making complaints to the manager of the Building and the police against [P], which complaints were vehemently denied by [P]” (§9);

(f)  There had been between December 2013 and 9 January 2014 four power outages at P’s Apartment (§10);

(g)  Those complaints and cross-complaints have become the subject matter of a separate Lands Tribunal matter (§11);

(h)  On 9 January 2014, at about 11:15 pm, whilst P was watching television in the living room, D2 “appeared at the front door banging on and kicking at it very hard with associated utterance of verbal abuse by way of vituperative language directed at [P] demanding that the door be opened” (§12);

(i)  “By reason of the stress and discomfort visited upon [P] as a result of the hostility … [P] did not attend the front door …”  (§13);

(j)  At about mid-night on 9 January 2014, there was another power outage at P’s Apartment.  P avers that it was caused by D1 and D2 “deliberately and maliciously” switching off the powersupply to his apartment (§15).  He further avers that “the Power Outage occurred while [P] was still stressed and agitated by the earlier banging and kicking on the front door and verbal abuses as pleaded in Paragraph 12 hereinabove” (§16);

(k)  “In the circumstances, [P] was stressed and disorientated by the Power Outage and, while he was making his way to the front door in total darkness, his foot was caught by a Persian rug in the living room thereby causing him to stagger and fall and sustain injury to his lower back.” (§17);

(l)  The power outages were “a serial of premeditated and concertedacts perpetrated by [D1] and [D2] or, in the alternative with the consent or connivance of [D1] and/or D2” (§18);

(m)  It is “eminently foreseeable” that the acts perpetrated by D1 and D2 “would likely expose [P] … to the risks of injury while moving or making their way in darkness and/or in a state of stress and/or disorientation associated therewith” (§19);

(n)  “In the premises, it is averred that the Deliberate Act and/or Power Outage was calculated and/or intended by [D1] and/or [D2] to cause injury, stress, discomfort and inconvenience to [P]” (§20).  Recklessness is then pleaded as an alternative.

3.  In P’s witness statement dated 9 October 2015, P sets out the evidence he proposes to give during the trial in relation to those prior conflicts between him and the defendants—see §§9 – 24.  He has therefore put forward his version of the events.  I note in particular what he has stated at §23, that:

“ I maintain that any sound coming from the stereo system was at a reasonable volume and not excessive. The stereo system was intended purely to be defensive measures for the purpose of shielding and/or muffling the noises from [D1’s apartment].”

4.  In his Revised Statement of Damages, P seeks damages for the physical injuries he claims he has suffered as a result of the alleged fall.  In addition, he also seeks and pleads:

“ 2.8. Further, [P] has suffered psychological sequelae as a result of the Incident …

2.9. In due course, [P] consulted a Clinical Psychologist, Dr Wong …

(1) Beck Anxiety Inventory and Beck Depression Inventory were administered which confirmed that [P] is suffering from a severe anxiety disorder since the Incident.

(2) The diagnosis of Post-Traumatic Stress Disorder … was made by Dr Wong with correlation to the traumatic event of the Incident …”

5.  When coming up with that diagnosis, Dr Wong had only been provided primarily with P’s version of the events.  Counsel have confirmed to me that neither the Defences nor D1’s witness statement have been supplied to him.  I note in this regard further what Dr Wong has said at §7.2 of his Psychological Treatment Progress Report (undated, at pp 1705 – 1712 of PTR Bundle D) that:

“ A frim diagnosis of PTSD was based on the following clinical criteria: [P] was personally subjected to the experience of traumatic event in which actual physical injury had resulted. He experienced intense psychological stress when exposed to cues reminding him of the incident, and he constantly harbours the fear that his home will once again be invaded …”

The application to adduce Mrs Wong’s Aff

6.  Mrs Wong has signed a statement for the purpose of this proceedings.  It was dated 9 October 2015 and supported by a statement of truth. 

7.  At §3 of Mrs Wong’s Aff, Mrs Wong said that she had recently been suffering from some health issues, and made the affirmation in case she would not be well enough to give oral evidence in the trial of this action.

8.  She passed away recently on 31 March 2019. 

9.  The contents of Mrs Wong’s Aff are substantially the same as those of her witness statement.

10.  I have considered the authorities cited to me, which include Hung Hing Yue Patrick v Ho Yin Man [2017] 1 HKLRD 1193, sections 47 and 49 of the Evidence Ordinance, Cheung Wei Man Vivien v Centaline Property Agency Ltd HCA 286/2000 (unreported, 25 September 2003) and Chung Hon v Ng Sau Chun [2019] 2 HKLRD 430.  I have considered the objections made on behalf of D2 by Mr Fong, counsel appearing for him. I have considered the contents of Mrs Wong’s Aff.  I note that she did not actually claim to witness the alleged fall.  Whilst her evidence will be contested, it does not go to the core of the issues.  The main evidence will still have to come from P.  At this stage, I cannot say that irrespective of what shall happen at the trial, no weight could be attached to the contents of Mrs Wong’s Aff (cf §12 of Cheung Wei Man). 

11.  In all the circumstances, I grant the leave sought.  I expressly leave the issue of weight to be argued and considered during the trial.

The application to expunge

12.  The Impugned Paragraphs relate to the defendants’ versions of the previous conflicts and unhappiness between the parties.  Those events led to the incident on 9 January 2014.

13.  I note that in the PTR Form, P did not reveal the basis for his application to expunge.  The bases were only revealed for the first time in the submissions of Mr Leung SC (leading counsel for P) dated 10 July 2019.  It is said that the retention of the Impugned Paragraphs “will attract unnecessary arguments at trial and will waste time and costs” (§37), and that “Alternatively, in so far as [D1] and [D2] seek to put in all these irrelevant but contentious evidence to taint the credibility of [P], such evidence is scandalous and should not be allowed in any event” (§38).

14.  I am mindful of the fact that I will be the trial judge.  I should not pre-judge the matter.  Nor should I give the impression that I have.  Because I have not.  At this stage, I have only formed the view, which view I am prepared to express, that P has failed to demonstrate any basis for the expunging of the Impugned Paragraphs.  Those paragraphs do not simply relate to “old scores”, as Mr Leung appears to suggest that they do.  It is P who raised them first in his Statement of Claim.  He has pleaded his denial (§8) in relation to them.  He has further pleaded his “vehement denial” of the related complaints (§9).  He has given his side of the events in his witness statement.  He is now trying to stop Ds from giving theirs.  In addition, the Impugned Paragraphs could be relevant to the question of P’s alleged “stress”, “discomfort” and “disorientation”, which P has referred to a number of times in his Statement of Claim.  They may also be relevant to the plea that Ds’ acts were “calculated and/or intended … to cause” such stress and discomfort (§20), or were otherwise “malicious” (§15) or “premeditated” (§18).  They could also be relevant to the issue of damages, and in particular whether P has been suffering from Post-Traumatic Stress Disorder as he has claimed.

15.  I refuse the application to expunge. 

16.  I will hear parties on costs.

(Submissions on costs)

17.  Mr Hingorani, counsel for D1, seeks in relation to the application to expunge costs on an indemnity basis.  Mr Leung submits that the application is within the usual ambit of a PTR, and the related costs shall be in the cause.

18.  I have formed the view, bearing in mind that the trial is only three months away, that I will be in a better position to rule on the costs issue after the trial.  I therefore reserve costs.  I have indicated to parties that all bases of assessment remain open.