LI SHIU TO v. CHEUNG PIK NG AND OTHERS

HCA 416/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 416 OF 2003

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D E C I S I O N

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1.  On 18 March 2015, a writ of subpoena was served upon the third party, LSK, by D1. Seven weeks later, LSK applies to have it set aside. The only question is whether or not D1 has abused the privilege of issuing the subpoena, or whether the subpoena was oppressive and vexatious (see Hong Kong Civil Procedure 2015, volume 1, paragraph 38/19/12 and Computer Personnel Limited v Digital Equipment (HK) Limited, unreported, Civ App No 29/1987, 19 March 1987). The ground on which LSK bases his application is that he had been certified medically as not competent or fit to give evidence in court.

2.  D1 has no witness to call at the trial.  He himself has passed away. LSK appears to be the only witness who may be able to give evidence on his behalf.  It cannot be disputed that LSK can give relevant evidence on the issues in dispute in the present case.  In my view, it was not an abuse of the privilege of issuing the subpoena within the meaning of paragraph 38/19/12. 

3.  On the medical evidence, LSK has produced four medical reports all dated December 2014, from different specialists.  The sum total of the medical evidence is that LSK is not totally mentally incapacitated, it is just that he is not in a condition to undergo the stress of giving evidence in court because of his poor medical condition.  There is no counter medical evidence from D1. 

4.  I do not think it is necessary to have LSK declared mentally incapacitated before the court would entertain this application.  Much depends on the overall circumstances, including the evidence from the medical reports.

5.  I agree with counsel for D1 that the first three reports from the specialists in rheumatology, respiratory disease and cardiology show that LSK is suffering from physical incapacities such as spine deformity, hypertension and coronary heart disease.  None of them were of a cognitive nature.  I take note, of course, of Dr Chow’s comment that the hypertension and ischaemic heart disease that LSK suffers from is such that he has been advised to refrain from physical and mental exertion which could aggravate his mental condition.  The court takes note of the fact that giving evidence in court can be a stressful exercise and can be a kind of mental exertion on a 77-year-old person. Nonetheless, with appropriate breaks, for example, during the evidence-taking, the court can accommodate such a witness.

6.  As regards medical evidence from Dr Chu, specialist in geriatric medicine, LSK is said to have mild to moderate impairment in time orientation, short-term memory, subtraction calculation and the ability to follow through three related steps.  Again, this may not be surprising for a 77-year-old person.  Dr Chu was of the opinion that LSK is mentally incompetent to attend any legal proceedings in court.  Because of his mild to moderate dementia, he would not understand information which may involve more than two related steps.  He could not understand complex legal and financial matters and he should not be required to provide any evidence in court.

7.  I have considered the fact that LSK has filed a defence and witness statement as the former 2^nd defendant.  He also acted for D3, the company, up to August 2014 when the plaintiff discontinued the claim against the company.  He can refresh his memory from the documents filed.  It is true that his defence and witness statement contained matters before the plaintiff amended his statement of claim to its current form to include new claims.  LSK will be D1’s witness and certainly D1 will have to take the risk of LSK being unable to give evidence on matters beyond the defendant’s defence and previous witness statement filed, for example, due to loss of memory or his current medical situation.  That will be a matter affecting LSK’s credibility and the weight which the court should place on his evidence, but I do not consider that sufficient to exempt him from being a witness. 

8.  Till now, it appears that LSK has been able to give instructions to his solicitors and to file affirmations.  Furthermore, he continues to act as director of 10 companies, some as sole director.  Mr Hunsworth invites the court to consider there is a distinction between signing mundane corporate documents such as annual returns, annual reports, and the very real strain in giving evidence in court. 

9.  I accept there may be a difference.  However, in the present case, so far as LSK is concerned, he has been signing “mundane” corporate documents such as annual returns, financial statements and directors’ reports, or even tax returns, but I do not regard, for example, signing a cheque for a substantial amount of more than $6 million as a mundane, regular matter to which very limited mental exercise is required from LSK.

10.  In addition, the medical report of Dr Chu was given in 2014, wherein it was recommended that LSK should undertake blood tests and MRI brain imaging, but LSK did not opt to have them at that time.  If his mental condition were as serious as he tried to describe to the court, I would be very surprised that he did not do further medical tests before he embarked on substantial financial matters as, for example, signing a cheque of over $6 million.

11.  Balancing all the factors individually and collectively and in the interest of D1 having LSK as a witness, I am not satisfied that it was oppressive or vexatious for D1 to issue the subpoena. 

12.  Just to complete the picture, D1 takes the point that LSK had delayed by seven weeks before taking out the present application.  I do not think that delay in itself is sufficient to bar LSK from relief.  Given the time from now to the trial, no prejudice would have been caused to anybody by virtue of that so-called delay.  But in any case, I do not think this delay will have any impact on my decision.

13.  In the circumstances, I dismiss LSK’s summons.

(Submissions on costs)

14.  Costs reserved.