CCMJ v. SSM formerly known as SKL

FCMP 67 /2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

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D E C I S I O N
(Filing of Medical Reports)

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Introduction

1.   This is the Applicant’s Summons dated 4 July 2014 (hereinafter called “Medical reports summons”) seeking leave of this Court for the filing of the following medical reports :-

(a)  Medical report of Dr. Cheung Ho Man dated 11 June 2012;

(b)  Medical report of Dr. Stanley Lam dated 2 July 2013; and

(c)  Medical report of Dr. Andrew Ip dated 8 July 2013

(hereinafter collectively called “the 3 medical reports”).  I will refer to each of the 3 medical reports by the surname of the doctor, namely, Dr. Cheung, Dr. Lam and Dr. Ip respectively. 

2.   At a hearing on 2 July 2014, upon the undertaking of the Applicant’s solicitors to issue the Medical reports summons by 4:00 p.m. on 4 July 2014, it was ordered inter alia that the Applicant’s supporting affirmation will be his 19^th Affirmation, the Affirmation in reply will be his 21^st Affirmation and the Respondent’s Affidavit in opposition will be her 6^th Affidavit, all of which had been filed prior to the issuance of the Medical reports summons.  Reason for the filing of Affirmations before the Summons was issued was set out in paragraph 11 below.

Background

3.   The Applicant is the Father and the Respondent is the Mother of a child (hereinafter called “N”) born in November 2008 out of the parties’ cohabitation.  These proceedings were commenced back in March 2010 when N was only aged 1 year and 4 months.  At present, N is aged 6 years old.  In the past few years, 6 Judgments were delivered (4 from this Court and 2 from the High Court).  This Judgment will be the 7^th Judgment where disputes between the parties seem nowhere close to the end.

4.   By way of background, this Court handed down the first Judgment back on 5 October 2012 that custody, care and control of the child N be given to the Respondent (Mother) after a 16-day trial.  It was decided in that Judgment that the Applicant (Father) would have general access and details of which was adjourned for further hearing with 1 hour reserved.  Without proceeding with the general access under the Judgment, the Applicant lodged his application for leave to appeal which was first dismissed by this Court and then further dismissed by the High Court under HCMP No.178 of 2013 on 25 June 2013.

5.   Whilst the issue of general access under the terms of this Court’s Judgment in October 2012 had yet to be finalised, the Applicant issued a Summons for variation of custody, care and control on 5 November 2013 (which is 5 months after the High Court refusal of his leave to appeal).  The present Medical reports summons was issued, as stated in paragraph 1 therein, for the purpose of the Summons dated 5 November 2013 (which is the summons for variation of custody, care and control).  The 2^nd Pre-Trial Review of the Applicant’s summons for variation has yet to be fixed at the time of this hearing.

6.   By way of further background, there are contemporaneous proceedings (whilst the Applicant’s variation of custody application is down the pipeline) by the Respondent seeking financial reliefs for the support of the child N, the trial of which had already started in August this year but adjourned part-heard and re-fixed to January 2015.  There had been an application by the Applicant for leave to issue a subpoena at the eleventh-hour before the Respondent’s financial relief trial in August started.  Upon this Court’s refusal, the Applicant took the matter to the Court of Appeal (see CACV No.152 of 2014) where this Court’s refusal of leave to issue subpoena was set aside.  Upon the comments of the Court of Appeal, parties have now provided case management timetable for the continuation of the financial relief trial which had now been re-fixed to January 2015.

Summons dated 17 October 2013

7.   On 17 October 2013, the Applicant issued a Summons which reads, inter alia :-

“(1)  Leave be grant to file medical reports in relation to N’s leg deformities problems in these proceedings including the respective medical reports of Dr. Stanley Lam dated 2 July 2013 and Dr. Andrew Ip dated 8 July 2013.

(2)  ………..”

Summons dated 5 November 2013

8.   On 5 November 2013, the Applicant issued another Summons and returnable on 7 November 2013 (that is, 2 days later) which reads, inter alia :-

“(1)  ……..

(2)  ……..

(3)  ……..

(4)  ……..

(5)  Leave be grant to file medical reports in relation to N’s leg deformities problems for the purpose of this Summons including the respective medical reports of Dr. Cheung Ho Man dated 11 June 2012, Dr. Stanley Lam dated 2 July 2013 and Dr. Andrew Ip dated 8 July 2013.

(6)  …….

(7)  …….”

9.   On the return day of 7 November 2013, this Court granted an Order which reads, inter alia :-

“(1)  …….

(2)  Parties to submit joint statement on Meeting of Experts within 21 days of this Order (i.e. on or before 28^th November 2013); and

(3)  …….”

10.   A Joint Meeting of experts between Dr. Andrew Ip (nominated by the Applicant) and Dr. Li Yun Hoi (nominated by the Respondent) was held on 20 November 2013.  The Joint Statement by the 2 experts was filed on 11 March 2014 (hereinafter called “the Experts’ Joint Statement”).

11.   Notwithstanding the aforesaid 2 Summonses had been disposed of by way of this Court’s directions on Joint Meeting of experts under Order 38, r.38 of the RHC, and the fact that the Joint Meeting was actually held and the Joint Statement had been filed back in March 2014, Miss Elsie Liu of Messrs. Haldanes at the Pre-Trial Review hearing on 2 July 2014 (which is about some 8 months later) re-visited the question of the filing of the 3 medical reports stated in the aforesaid Summons dated 5 November 2013.  Upon further clarification with Miss Liu there and then at the hearing on their position, directions were then given for a proper Summons to be issued by 4 p.m. on 4 July 2014, which is the present Medical reports summons.

12.   At this hearing, the Applicant was represented by Counsel Miss Mairead Rattigan.  The Respondent was represented by Counsel Mr. Kevin Li on the instructions of legal aid. 

The Applicable law and legal principles

13.   It is trite that leave must first be obtained from the Court if a party wishes to adduce expert evidence [see Order 38, r.36 of the Rules of the High Court “RHC”].  Further, even if leave is granted, there are various pre-requisites for the expert to comply with before his/her evidence can be adduced as admissible evidence, such as the expert’s statement of truth (see Order 38, r.37A), expert’s declaration of duty to court (see Order 38, r.37C).  Moreover, there are provisions for meeting of experts (see Order 38, r.38) where there are different experts holding divergent views on issues.   All these are under Part IV (Expert Evidence) of Order 38 of the RHC.

14.   Practice Direction 15.12 (Matrimonial Proceedings and Family Proceedings) applies to the High Court and Family Court (see Part A paragraph 1 therein).  Part G paragraph 8 reinstates the case management powers of the court under Order 1B having regard to the underlying objectives of the Civil Justice Reform (“CJR”) under Order 1A.  Part G referred to the new measures under the Civil Justice Reform setting out various Orders of the RHC of general applicability to Family Court; where Part IV of Order 38, Part IV – Expert evidence is one of them (see paragraph 9 (6)).  Part K paragraph 20 expressly sets out the applicability of Expert Evidence under Order 38 of RHC to contested matrimonial/family proceedings where expert needs to be instructed subject to those directions set out in Part K, namely, paragraphs 21 and 22.    

15.   I have not been assisted by Counsels as to any local case law which I may consider in deciding the present application save and except the English case of J v. C by Miss Rattigan in her written submissions, citing one passage from the Judgment of Lord MacDermott, as to how the child’s welfare as the first and paramount consideration was to be construed. 

The Applicant’s position

16.   Counsel Miss Rattigan’s submission rests principally on the utmost importance of all relevant medical evidence has to be before the Court so that there can be a full consideration of the issue of leg deformities of N.  Such issue is part and parcel of those considerations of N’s best interests or welfare, which include medical care.  According to the Joint Statement, the 2 medical experts namely Dr. Andrew Ip and Dr. Li Yun Hoi nominated by the parties had agreed that N suffers from genu recurvatum and flat foot (of which the term ‘musculoskeletal problem’ was used by the parties in place of the medical terminology) although the experts deviate from each other as to the severity of the deformity and the need for treatment. Given that there is a divergence of medical opinions between the 2 experts, the leg deformity issue had not yet been narrowed down through the Joint Meeting of experts.  All other relevant medical evidence would be highly relevant for the Court.

17.   Reference was made to the first and paramount consideration of ‘best interests’ (though Miss Rattigan used the term ‘welfare’ which term was replaced by subsidiary legislation amendment in April 2012.  I accept this is a matter of nomenclature rather than of substance) under the Guardianship of Minors Ordinance Cap.13 which the Courts always have to bear in mind over children matters, of which it must include the child’s future care arrangements in light of medical needs. 

18.   Reference was also made to the recommended checklist which commonly called “Welfare Checklist” contained in the Law Reform Commission of Hong Kong Report on custody and access of 7 March 2005 which was drawn from the Children Act and Australian legislation. 

The Respondent’s objection

19.   Counsel Mr. Kevin Li fairly took no issue on the relevant law and legal principles as to “best interests” being the Court’s first and paramount consideration whenever it comes to children matters.  The Respondent’s contention rests principally upon procedural aspect and practical impact if the 3 medical reports are allowed to be filed. 

20.   First, the 3 medical reports were all obtained without leave of the Court.  This contravenes Practice Direction 15.12 Part K paragraph 21 which might contravene the law of contempt of Court although this was not further pursued by Mr. Li.  Secondly, the 3 medical reports do not contain the requisite statements of truth and expert’s declaration of duty to the court.  Thirdly, to allow the 3 medical reports would cause delay to the proceedings with further costs incurred since the Respondent should be given a chance to consider whether additional medical evidence is required to comment on the medical reports not canvassed at the Joint Meeting, namely the medical reports of Dr. Cheung and Dr. Lam, or at the very least, Dr. Li should be further consulted as to whether he has any further comments or views.

Discussion

21.   I will consider the Applicant’s Medical experts summons under the following sub-headings.

(a) Practice Directions 15.12

22.   Under Part K paragraph 21 it reads :-

“21.  In Matrimonial Proceedings/Family Proceedings relating to children, which are held in chambers and not open to public,

(1)   The Court’s permission is required to instruct an expert.  Such proceedings are confidential and, in the absence of the Court’s permission, disclosure of information and documents relating to such proceedings risks contravening the law of contempt of Court or statutory provisions protecting this confidentiality.

(2)   Before permission is obtained from the Court to instruct an expert, it will be necessary for the party wishing to instruct an expert to make enquiries designed so as to provide the Court with information about that expert which will enable the Court to decide whether or not to give permission.

(3)   Such preliminary enquiries, and the disclosure of anonymised information about the case which is a necessary part of such enquiries, will not require the Court’s permission and will not amount to any contempt of Court.”

23.   It is undisputed the 3 medical reports were obtained by the Applicant without leave being obtained in advance from the court.  The Applicant saw fit to obtain these medical opinions during his access times without prior consent of the Respondent.  Miss Rattigan submitted that this was because N had suffered from leg deformities long ago. Such leg deformity problem caused concern of the Applicant who had already raised such issue during the substantive trial on custody back in 2012.  There were earlier reports on this issue at the custody trial which for various reasons not accepted by the Court after trial.  The present 3 medical reports are readily available and are of relevance and importance which the Court should consider when deciding the best interests of N.

24.   I noted the reports of Dr. Lam and Dr. Ip were obtained within the month of July 2013.  Although this was after this Court’s Judgment on sole custody in October 2012 and before the Applicant issued his Summons for variation of custody in November 2013, the question of general access under the Judgment on sole custody had yet to be resolved. More precisely, these reports of Dr. Lam and Dr. Ip were obtained soon after the Court of Appeal refused his leave to appeal the Judgment on sole custody (see HCMP No.178 of 2013, Date of Judgment : 25 June 2013). Accordingly, I will say there are pending proceedings around July 2013 during which the Applicant could, and indeed should, seek directions from the Court beforehand if he is minded to obtain further expert evidence for the purpose of any further steps to be taken in the proceedings, which will be the general access issue at that time.  Unfortunately, this had not happened. 

25.   In my decision, the Applicant should not be allowed to obtain expert evidence and then chooses to produce them anytime he wishes or for any purpose he wants without compliance with the requisite rules and procedures.  The Applicant’s way of handling experts’ evidence appears to be that if the expert evidence tends in his favour then he may choose to adduce them in the proceedings by seeking retrospective leave to do so.  How about if the expert evidence obtained unilaterally and without leave does not support his case?  The Applicant would then have the liberty to decide whether to produce such expert evidence or, if he has the means and resources to do so, obtain further expert evidence since the Court had not been involved in the obtaining of that piece of expert evidence which turns out to be not supporting his case, or the Court would not even know about its existence, unless he chooses to disclose it voluntarily.  Such practice is improper and unfair.  It is trite that a party in litigation who obtains expert evidence without leave do so at his or her own risks.  There are plainly no justifiable reasons why the Applicant could have the privilege of not having to comply with the Practice Direction in terms of the obtaining of  expert evidence and, on the other hand, also enjoying the benefit of choice of disclosure only if he so wishes.  

26.   Given the fact that we are now at the post-CJR era, active case management is equally applicable to family proceedings as in other civil proceedings (per Hon Lam VP in the recent Judgment (19/8/2014) of CCMJ v. SSM also known as SKL at para 46 [2014] 5 HKLRD 89).   Quoting the words of His Lordship :-

“46.  Before we end this judgment, we wish to express some concerns about case management in family proceedings.  We understand that a review of the family procedure rules is ongoing.  We also understand that there is a heavy caseload in the Family Court. However, even before the implementation of any further changes as a result of the review, as we have tried to explain above, under the existing framework active case management is equally applicable to family proceedings as in other civil proceedings. And we must stress again, at the risk of repetition, parties and their legal representatives owe a positive duty to assist the court in the proper carrying out of its case management function.  It is high time that those involved in family proceedings should take a real look at paragraph 16 of PD 15.12.”

27.   I have not been assisted by Counsel Miss Rattigan nor am I aware of any authorities that Court directions for adducing expert evidence under the long established and comprehensive procedural rules of Order 38 of the RHC or compliance with Practice Directions could be waived or in anyway relaxed. 

28.   Having said, I am minded to refer to the Judgment of Hon Lam J (as he then was) in the case Chok Yick Interior Design & Engineering Co Ltd v. Lau Chi Lun trading as Chi Hung Construction Eng. Co. [2010] H.K.E.C. 671, where his Lordship vividly described his experience as the trial judge had said :

“(7)  I wish to stress that application for expert directions is not a mere formality. It is an integral part of the case management process.  As a trial judge, I have seen far too many cases where the lack of proper preparation of expert evidence resulted in unnecessary costs and time spent on evidence which is of no help to the resolution of the dispute.  And such wasteful exercise cost the parties a great deal of money, not only in terms of the fees paid to the experts, but also legal costs spent on paying for the lawyers’ reading, understanding of the reports, discussing the matter with the experts and then the time (and costs) of the lawyers explaining and exploring the expert evidence with the judge by way of submissions and the examination and cross-examination of the experts during trial.  Very often, it is not only the party responsible for the mismanagement of expert evidence who has to pay such costs, similar costs have to be incurred (at least on an upfront basis) by his opponent.

(8)  Such wastage is not consistent with the underlying objectives set out in Order 1A Rule 1.  Thus, the court, in the performance of its case management duty under Order 1A Rule 4, should give expert directions to avoid the mismanagement of expert evidence. And the parties and their legal representatives have a duty to assist the court in formulating the appropriate directions (Order 1A Rule 3)…..”

29.   This is not, however, the end of the matter.  In the recent case of Grand Wayfair Investment Company –v- Chan Yung Kan & Ors (CACV No.238 of 2013), [Date of Judgment : 26 September 2014], where Hon Lam VP (giving the Judgment of the Court) upholding the trial’s Judge decision of rejecting expert evidence said as follows :-

“39.  It must be reiterated that expert evidence is only called for in specific areas where without such assistance the court is not in a position to properly consider the evidence.  To allow opinion evidence (even if it is an opinion from an expert) to be admitted in any other cases is a misuse of expert evidence.  See Hong Kong Civil Procedure 2014 Vol 2 para J1/58/2; British Celanese Ltd v. Courtaulds Ltd (1935) 52 RPC 171 at p.198; Chen Paul v. Lord Energy Ltd [1998] 1 HKC 702; Guangzhou Green-Enhan Bio-Engineering v. Green Power Health Products HCA 4651 of 2002, 16 Sept 2004.”

30.   Considering the above authorities and the reasons above, in addition to those other reasons which I set forth below, I decided the 3 medical reports which were obtained without prior and proper directions from the Court are not allowed to be filed.

(b) Order 38, r.37A and 37C

31.   The absence of statement of truth and declaration of duty by the experts may be cured by a subsequent court order although it must not be rectified so late in time as to deprive the opposing party of any opportunity to obtain contrary expert evidence (see Aspial Investment Ltd v. Mayer Corporation Development Limited [2013] H.K.E.C. 803).  Such application may be made by any party under Order 41A, r.8. 

32.   However, up to the time of this hearing, no such application had ever been made by the Applicant.  The 3 medical reports before the Court are, therefore, inadmissible evidence per se (see Order 38, r.37C(1)) unless properly rectified.

(c) Order 38, r.38

33.   As mentioned earlier, directions were given by this Court for meeting of experts under Order 38, r.38 on 7 November 2013.  This was the time after the Applicant had issued his Summonses dated 17 October 2013 and 4 November 2013 and indeed the returnable date for the Summonses seeking leave to produce the 3 medical reports.  The Applicant, with the benefit of legal advice, nominated Dr. Andrew Ip (author of one of the 3 medical experts) and the Respondent nominated Dr. Li Yun Hoi as their respective experts for the Joint Meeting of experts and the Joint Statement was signed by them and filed.

34.   The rationale for the Court to direct meeting of experts under Order 38, r.38 is not difficult to understand.  It is for the control of expert evidence to be adduced in litigation, be it in terms of quantity, narrowing issues or proper case management.  This can be seen from the commentary to Order 38, r.4A (Limitation of expert evidence) at page 787 of The Hong Kong Civil Procedure (2015) Volume 1where it said :-

“Effect of rule

 ……

 The court has numerous other means by which to control expert evidence. Examples are provided as follows.  First, parties cannot adduce expert evidence at trial or hearings, except with the court’s leave or the consent of all parties, unless it has first sought (my  emphasis) and complied with directions of the court concerning pre-trial disclosure of the substance of the expert evidence (r.36) or expert evidence contained in a statement (r.37).  Second, where experts (although duly limited in number) file expert reports which are too numerous and/or elaborate, thereby over-complicating the issues,the court may order experts to meet pursuant to O.38, r.38, with a view to identifying areas of common ground and isolating the issues on which they differ, thereby simplifying the evidence (my emphasis) …….”

35.   The Applicant at all times was and is legally represented by reputable lawyers with extensive experience in matrimonial practice.  He is at all liberty to apply for directions under Order 38, r.4 as to the number and identity of experts for the Joint Meeting of experts where, in all cases unless the Court otherwise directs, one expert from each side is the norm if it is not a single joint expert.  There is no such application from the Applicant for more than 1 expert for the Joint Meeting directed by the Court.

36.   At the time when the meeting of experts direction was given (that is, 7 November 2013), the Applicant already have had in his possession the 3 medical reports in question, namely, that of Dr. Lam (dated 2 July 2013) and Dr. Ip (dated 8 July 2013), not to say the medical report of Dr. Cheung obtained about 1 ½ year ago (dated 11 June 2012).  Since it is the Applicant who is now seeking to file medical reports from Dr. Cheung and Dr. Lam in addition to the medical report of the nominated doctor Dr. Ip, it is incumbent for him to seek directions from the Court in advance (my emphasis) on the number of experts for the purpose of the Joint Meeting if he is minded to also have the medical opinions of Dr. Cheung and Dr. Lam (already obtained by him in the form of a medical report) presented at the Joint Meeting of experts.  Nevertheless, he had made his decision with full legal advice, to nominate Dr. Ip only (my emphasis) as his medical expert for the Joint Meeting. 

37.   Counsel Mr. Li submitted that if those additional medical reports are allowed to be filed at this stage, it defies the purpose of the Joint Meeting of experts which had already been held with the Joint Statement signed and filed.  Reason being that the Respondent should be allowed to seek further medical opinion from Dr. Li and possibly other medical experts about the medical reports of Dr. Cheung and Dr. Lam.  

38.   I agree with Counsel Mr. Li.  At page 2 of the Joint Statement, it was recorded that, amongst other documents, only the medical report of Dr. Ip dated 8 July 2013 (i.e. which is one of the 3 medical reports under the present Medical reports summons) was produced for the Joint Meeting of experts but not the medical reports of Dr. Lam and Dr. Cheung which the Applicant now seeks to also adduce as evidence.  Had Dr. Li been aware that the medical reports of Dr. Cheung and Dr. Lam would also be produced as medical evidence, whether or not these 2 additional reports support the medical report of Dr. Ip or Dr. Ip’s opinion expressed in the Joint Statement, Dr. Li might have further comments to make in the Joint Statement.  To the very least, something might have been said about the reports of Dr. Cheung and Dr. Lam.  Moreover, as Counsel Mr. Li rightly submitted, further consideration may be given as to whether other experts in addition to Dr. Li are needed by the Respondent.  All such exercise would prolong the proceedings and increase costs unnecessarily, it also puts the entire case management regime under the CJR in defiance.

39.   Where the court has ordered the production of a joint report, it expects the parties to follow its case management decision.  In the case Thapa Krishna Raj v. Wo Hing Construction Company Limited & Anor [2009] H.K.E.C. 1085, the plaintiff obtained a single report subsequent to a joint report (prepared by the respective orthopaedic experts of both parties) without discussing with the other side and seeking the leave of the court.  As a result, the court refused leave to adduce the single report as evidence and criticised the plaintiff for ‘sabotaging the entire system of case management’.  This is a pre-CJR case where the Judgment was handed down on 16 March 2009, that is, 2 weeks before commencement of the Civil Justice Reform on 2 April 2009.  At paragraph 14 of the Judgment, His Lordship said :

“14.  I wish to sound a note of serious caution that the Plaintiff’s conduct in obtaining a further solo report subsequent to a joint report and without leave is in fact sabotaging the entire system of case management.  In any case, the issue of pre-existing degeneration is sufficiently dealt with in the joint report given the common understanding now indicated by the parties……”.

40.   Although Thapa Krishna Raj is a pre-CJR case and it deals with a solo expert report obtained subsequent to the joint report of parties’ orthopaedic experts, I am of the view that the obtaining and production of expert reports for the purpose of legal proceedings, whether there exists any joint report, are always under the scrutiny of the Court through case management directions.  Such long established practice remains intact after the implementation of the CJR and its importance in matrimonial and family proceedings is further elaborated by the relevant Practice Directions, namely, PD 15.12.

Any prejudice or unfairness?

41.   I have reminded myself the provisions under Order 35, r.3A as to whether this Court’s discretionary decision disallowing the 3 medical reports to be filed would detract from the principle that each party is entitled to a fair trial (see O.35, r.3A(2)(b)); or the principle that each party must be given a reasonable opportunity to lead evidence and cross-examine witnesses (see O.35, r.3A(2)(c)) and; most importantly, all those underlying objectives within Order 1A, r.1 of the RHC. 

42.   The answer requires examination of the contents of the Joint Statement to see whether the medical reports of Dr. Cheung and Dr. Lam are called for where without such assistance the court is not in a position to properly consider the available evidence, namely, the Joint Statement? (see Grand Wayfair Investment Company case (supra)).

43.   The Joint Statement specifically deals with N’s genu recurvatum and flat foot which, as Miss Rattigan submitted, had been agreed to by the respective nominated experts Dr. Ip and Dr. Li.  Their divergence in opinion is only on the degree of severity and need for treatment.  This is the issue before the Court.

44.   The key question thus falls to be considered is whether Dr. Ip’s evidence can be properly considered by the Court without the medical reports of Dr. Cheung and Dr. Lam.  Upon reading the Joint Statement with reference to the curriculum vitae, medical opinion and findings of Dr. Ip, I am not convinced that the medical reports of Dr. Cheung and Dr. Lam are called for without which this Court could not properly consider the evidence of Dr. Ip.  In my view, what is called for is not those additional medical experts to ‘reinforce, corroborate, confirm or support’ Dr. Ip’s opinion or findings in the Joint Statement, it is rather for Dr. Ip himself to testify in Court and, subject to cross examination, for the Court to determine on the issue of severity and need for treatment of N’s genu recurvatum and flat foot, one way or the other. 

45.   It is purely a matter for the Court to consider which side’s medical evidence is the preferred one for N’s best interests after the respective medical experts have testified in Court. There has never been any requirement of ‘reinforcement, corroboration, confirmation or support’ of further medical evidence in order to render the medical evidence already before the Court more ‘credible, persuasive, reliable or professional’.  Had this been the Applicant’s personal views, it may be over simplistic and stands to be corrected.

Best Interests/Welfare Checklist etc

46.   Now I will turn to Miss Rattigan’s submissions of best interests and the welfare checklist.  Best interests are always the first and paramount consideration of the Court has been rightly and fairly conceded by Counsel Mr. Li for the Respondent at the outset.  There is also no question that ‘paramount consideration’, being the child’s best interests or welfare, to also include medical care and treatment.

47.   During the hearing, Miss Rattigan also addressed the Court that any person by looking at the photos of N’s legs would have noticed the degree of deformity there being severe.  Reference was also made to some comments expressed by Deputy Judge S. Lo (as he then was) at one of the earlier hearings last year in 2013 when the learned deputy Judge looked at some photos of N’s legs.  Without disrespect to Miss Rattigan, this is precisely the issue which this Court would need to find out at trial with the assistance of medical evidence of Dr. Ip and Dr. Li, the nominated medical experts.

48.   Since N’s genu recurvatum and flat foot had now been confirmed by the experts in the Joint Statement in 2014 leaving behind the degree of severity and need for treatment as the only issue, any comments expressed by the learned deputy Judge S. Lo (as he then was) when he looked at the photos in 2013 might have been the aftermath of genu recurvatum and flat foot.  Whatever comments of the learned deputy Judge S. Lo should not be taken as indicative of severity of genu recurvatum and flat foot in respect of which treatment is wanting.  These are issues to be resolved at trial through the assistance of medical evidence of Dr. Ip and Dr. Li.      

49.   As to the submission on children’s welfare checklist, it has been decided in the case of H v. N [2012] 5 HKLRD 498 where Hon Poon J sets out the approach to be taken by the Courts when exercising powers under section 3(1) of the Guardianship of Minors Ordinance, Cap.13 on custody issues.  The use of the children’s welfare checklist was discussed at length by His Lordship at Part D of his Judgment which I do not intend to repeat here.  This Court has previously recited the relevant parts of Hon Poon J’s Judgment in this Court’s Reasons for Decision (dated 11 January 2013) when considering the leave to appeal lodged by the Applicant.  Suffice to say is that His Lordship, having considered the relevant statutory provisions under Cap.13, confirmed there is no duty for the Judge to have regard to the welfare checklist or is the Judge compulsorily bound to have to go through it.  It is entirely for the Judge to decide who may, if decided to use it, even cherry-pick.  Needless to say, this Court is bound by the decision of H v. N (supra).

50.   Although the present application is not for determining custody under section 3(1) of the Guardianship of Minors Ordinance, Cap.13, I am however prepared to take into account Miss Rattigan’s submission that regard should be given to the children’s welfare checklist.  Having said and given the nature of the present Medical reports summons, which in form and substance is an interlocutory application, I am not convinced that the factors under the children’s welfare checklist should be taken as determinative or prevail or override the applicability of the aforementioned rules and procedures under the RHC or the relevant Practice Directions. 

The 3 Medical Reports

51.   Amongst the 3 medical reports sought to be adduced, there is the report of Dr. Ip himself dated 8 July 2013 which had been produced and considered at the Joint Meeting.  The contents of this report had been fully considered and covered by the Joint Statement.  There is virtually no question of seeking leave to produce this medical report.

52.   Of the other 2 medical reports of Dr. Cheung and Dr. Lam, I decided not to allow any one of them to be filed.

Conclusion

53.   For the reasons above, the Applicant’s Summons dated 4 July 2014 (i.e. the Medical reports summons) will be dismissed. 

54.   I find there is no basis for departing from the normal rule on costs.  Accordingly, I also decided that the Applicant should pay to the Respondent all the costs of and occasioned by the Summons dated 4 July 2014 including any costs reserved, to be taxed if not agreed, and be paid forthwith.  The Respondent’s own costs be taxed in accordance with Legal Aid Regulations.

55.   I also grant Certificate for Counsel.

56.   This is a costs order nisi which will become absolute unless any party applies to vary the same within 14 days.