ELIJAH SAATORI v. RAFFLES MEDICAL GROUP (HONG KONG) LTD

CAMP 14/2019

[2020] HKCA 163

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 14 OF 2019

(ON AN INTENDED APPEAL FROM HCPI 1114 OF 2006)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

A.     INTRODUCTION

1.  This is the applicant’s application for leave to appeal out of time against a decision made by Au‑Yeung J (“the Judge”). It arises as follows.

2.  The applicant is subject to the Restricted Application Order (“the RAO”) and the Restrictive Proceedings Order (“the RPO”) dated 7 August 2009, made against him under HCPI 1114 of 2006 (“the HCPI Action”) by Deputy High Court Judge Carlson.

3.  On 7 November 2018, he sought leave from the Judge for leave to commence proceedings against the Director of Legal Aid (“the DLA”).  On 13 November 2018, by way of a direction[1], the Judge refused to grant leave (“the Refusal Decision”).  Upon further inquiry by the applicant[2], on 3 December 2018, the Judge further directed that “leave was refused as [the applicant’s] intended claim raised issues concerning matters that have been dealt with in the concluded proceedings in [the HCPI Action]”.

4.  The applicant attempted to seek leave from the Judge to appeal against the Refusal Decision.  The Judge directed on 14 January 2019 that no leave was required to appeal against the Refusal Decision because of Order 59, rule 21(1)(a).  Alternatively, the Judge stated if leave was required, she would not grant it as the intended appeal had no reasonable prospect of success and there were no other reasons in the interests of justice why the appeal should be heard.

5.  Notwithstanding that, the applicant then took out a summons on 24 January 2019 (“the Summons”) under the present proceedings seeking leave from this court to appeal against the Refusal Decision.

6.  On 13 February 2019, Lam VP directed that, among other things, (a) the applicant did not need leave to appeal against the Refusal Decision as the RAO and RPO were not made pursuant to section 27 of the High Court Ordinance (Cap 4), but (b) as the applicant was by then late in his appeal, he was required to apply for leave to appeal out of time, and (c) if the applicant intended to do so, he should amend the Summons to so apply.  The applicant thereafter filed the Amended Summons dated 16 February 2019 together with the appeal bundles and written submissions seeking leave to appeal out of time.

7.  Having considered the documents filed and lodged by the applicant, we are of the view that the present application should be determined on paper without an oral hearing pursuant to Order 59, rule 2A(5) of the Rules of the High Court.  We now give our judgment on the application.

B.     BACKGROUND

8.  There were multiple proceedings that have been issued or brought by the applicant throughout the years.  For the present purposes, the main action is the HCPI Action brought by the applicant against Raffles Medical Group (Hong Kong) Limited (“the Defendant”).

9.  The relevant background and procedural history related to the HCPI Action which is pertinent to this application has been succinctly summarized by this court (Yuen, Kwan and Chu JJA) in [2018] HKCA 732 at paragraphs 3 - 14 per Kwan JA (as she then was):

“3. The plaintiff commenced this action against the defendant on 9 May 2006. He acted in person at that time and was granted a legal aid certificate on 28 January 2011. The legal aid certificate was revoked on 29 August 2016. He successfully appealed against the decision of the Director of Legal Aid and the legal aid certificate was restored retrospectively from the date of revocation. The decision to restore legal aid was received by the plaintiff two days after 7 November 2016, by which time judgment had already been entered against him dismissing his action.

4. The claim against the defendant is for damages for medical negligence. The plaintiff’s case is that he attended the defendant’s clinic on or about 5 August 2003 for the propose of wax removal in the right ear. Shortly after the treatment which he received at the clinic, he experienced acute, chronic tinnitus which developed into serious physical and psychological injuries and disabilities.

5. The trial of the action was scheduled to commence before Chow J on 2 September 2016 with ten days reserved. On 1 September 2016, the judge dismissed the plaintiff’s application to adjourn the trial on the ground that his legal aid certificate had been revoked on 29 August 2016. The judge also lifted the legal aid stay.

6. On 2 September, the plaintiff did not turn up for the trial as he had apparently collapsed at home earlier that morning and was taken to hospital for treatment. The judge adjourned the hearing to 5 September and ordered the plaintiff to make himself available for a medical examination by a neurologist appointed by the defendant at the plaintiff’s costs to determine his fitness to attend court for the trial.

7. Dr Brian Choa, the neurology specialist appointed by the defendant, examined the plaintiff on 3 September. According to his report, the most likely cause for the plaintiff’s brief loss of consciousness at home on 2 September was the multiple medication he had taken, leading to syncope in the context of stress and an empty stomach. Dr Choa expressed the opinion that the plaintiff should be fit to attend court by 7 September 2016, especially if his attendance was confined to the afternoon sessions.

8. The plaintiff failed to turn up at the adjourned hearing on 5 September as he was staying in hospital for further medical tests. After considering Dr Choa’s report and the medical certificate and letter of the plaintiff’s treating doctor, the judge adjourned the trial to 7 September.

9. The plaintiff did not turn up for the adjourned hearing of the trial on 7 September. He produced further medical certificates from his treating doctor and a certificate from a specialist in psychiatry in support of his application for adjournment.

10. Taking all relevant matters into account (the conflicting medical opinions on the plaintiff’s fitness to attend court, the plaintiff was again without legal representation, the prejudice that would be suffered by the defendant in the event of an adjournment), the judge reluctantly granted an adjournment of the trial to new dates to be fixed, subject to these conditions (‘the adjournment conditions’):

(1) the plaintiff do pay the defendant $438,491.60 within 21 days, being the outstanding taxed costs which he had been ordered to pay the defendant in this action and in CACV 109/2008;

(2) the plaintiff do pay into court $1,200,000 within 21 days as security for (i) the costs which he had been ordered to pay to the defendant in this action and in CACV 184/2009, and (ii) the defendant’s costs thrown away by the adjournment of the trial;

(3) unless the plaintiff shall make full payment in accordance with (1) and (2) above, his action against the defendant shall stand dismissed without any further order of the court with costs to the defendant.

11. This is the unless order of 7 September 2016 referred to earlier.

12. On 29 September 2016, the judge dismissed a number of applications by the plaintiff including an application to stay or set aside the 7 September 2016 order. Instead, the judge extended the time for the plaintiff to comply with the adjournment conditions in the unless order of 7 September to 7 November 2016.

13. The plaintiff applied for leave to appeal against the decision of 29 September. On 7 November 2016, the judge refused to grant leave. The plaintiff renewed his application for leave to appeal to the Court of Appeal under HCMP 3224/2016. His application was dismissed by the Court of Appeal (Chu JA and Poon JA) on 13 September 2017.

14. As the plaintiff failed to comply with the adjournment conditions in the unless order within time as extended, judgment was entered on 7 November 2016 dismissing his claim in this action. The plaintiff filed a notice of appeal on 29 November 2016 to appeal against this judgment and this is the appeal that we are concerned with.” (emphasis added)

10.  The revocation of the legal aid certification in the HCPI Action is the subject matter of this application.  By a writ of summons dated 7 November 2018 attached with a statement of claim (“the SOC”), the applicant sought to claim against the DLA for damages in the sum of HK$63,730,071.44 (“the Intended DLA Proceedings”).  As shown in the SOC, the primary basis of his claim is his allegation that the DLA was negligent in wrongfully revoking his legal certificate in relation to the HCPI Action before trial, which the applicant says effectively resulted in his claim under HCPI being dismissed.

11.  However, given the RAO and RPO, the applicant had to seek leave to commence the Intended DLA Proceedings.  That went before the Judge.  As mentioned above, by way of the Refusal Decision, the Judge refused to grant leave.

C.     THE PRESENT APPLICATION FOR LEAVE TO APPEAL OUT OF TIME

C1.    Applicable principles

12.  The relevant approach to determine an application for extension of time to appeal is well established and has been conveniently summarized by Kwan JA in Lee Chick Choi v Best Spirits Co Ltd HCMP 371/2015, 21 May 2015 at paragraph 19:

“The legal principles regarding an application to extend time for an appeal are well established. In the exercise of its discretion, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding if an extension of time is granted, and the degree of prejudice to the other party if the application is granted…”

13.  Further, where a delay is inexcusable although insubstantial, a party seeking an extension of time must show a real prospect of success on the merits: see Secretary for Justice v Hong Kong & Yaumatei Ferry Co Ltd [2001] HKCA 422; [2001] 1 HKC 125 at 129I.

14.  Bearing this principle in mind, we will now proceed to consider the applicant’s present application for extension of time to appeal.

C2.    Length and reasons for delay

15.  Under Order 59, rule 4(1)(c) of the Rules of the High Court, the applicant has until 11 December 2018 to appeal from the Refusal Decision which was made 13 November 2018.  By the time he took out the Summons on 24 January 2019, he was more than six weeks (44 days) late.  This delay is significant.

16.  Even if we treat the Refusal Decision having been made on 3 December 2018 (when the Judge explained the reasons for it) as is apparently the position of the applicant, he was still 24 days late in his appeal as the appeal period should, on that basis, have expired on 31 December 2018.

17.  In the Amended Summons, the applicant explained the delay for the reason that, as he was not legally represented, he was under the false impression that leave was required from the court to proceed with the appeal. He also claimed that the amount of delay was not substantial and that it would be in the interests of justice to allow the appeal out of time.

18.  It is well-established practice that the court does not accept a mistaken view on the law as a valid excuse for failing to comply with the rules of the court, including the time to lodge an appeal.  That is so even if the defaulting party is acting in person[3]. The delay is therefore inexcusable.

19.  Therefore, even taking the applicant’s case to the highest, given the inexcusable delay, we will have to consider whether the proposed grounds of appeal have a real prospect of success to determine whether we should give the applicant leave to appeal out of time.

C3.    Whether the proposed grounds of appeal have a real prospect of success

20.  The applicant sets out his proposed grounds of appeal in the Amended Summons.  In essence, the applicant claimed that the Judge erred in law and fact in refusing to grant leave for the applicant to commence action against the DLA.  To elaborate, the applicant advanced the grounds as follows:

“2] The Judgement and Decision in HCPI 1114 of 2006 did NOT deal with Legal Aid’s errant Certificate revocation and failure to book a timely means test; nor the failure to advise the SLA Scheme. [See HCMP 3224/2016 Decision].

3] HCPI 1114 of 2006 was NOT A Case against Legal Aid, but a Medical Negligence Case against Raffles Medical Group.

4] Furthermore, the RAO and RPO matters are concisely summed up in CACV 184 of 2009. Here it is clear that the RAO was only imposed because a mere THREE out of EIGHT Applications in HCPI 1114 had failed. The RPO was only imposed to keep the Plaintiff focussed on HCPI 114 of 2006…

5] The proposed Action against Legal Aid is not a collateral attack on the decision of HCPI 1114 of 2006; nor is it an abuse of process, frivolous or vexatious – nor is it a satellite Action.”

21.  Briefly stated, the applicant claimed that since his claims against the DLA were not adjudicated in the HCPI Action and the DLA was not a party to that action, the Intended DLA Proceedings is not caught by the RAO and RPO. The Judge therefore erred in law and fact in refusing to grant leave for him to commerce the Intended DLA Proceedings.

22.  We do not agree.

23.  The terms of the RAO and RPO imposed on the applicant are as follows:

“The Plaintiff be prohibited from making further applications to the Court in HCPI 1114 of 2006 and also from commencing any fresh proceedings, by whatever originating process concerning any matters involving or relating to or touching upon or leading to the concluded proceedings in HCPI 1114 of 2006 without leave of the Court of First Instance.” (emphasis added)

24.  In other words, in order not to be caught by the RAO and PRO, the substance of the Intended DLA Proceedings must not concern matters that involve, relate to or touch upon or lead to the concluded proceedings in the HCPI Action.

25.  In the Intended DLA Proceedings, the applicant claims that the action is based on three counts of professional negligence and one count of loss of chance[4].  He has pleaded the details as follows:

“5] Negligence count one: Despite Legal Aid knowing the date for the commencement of the Trial, it failed to conduct a means test on the Plaintiff (for the Trial Legal Aid Certificate) until August 25^th AD 2016, six days ONLY before the Trial was set to begin. This was severe negligence by Legal Aid as it left no time for the Plaintiff to conduct any Appeal, in the event Trial Legal Aid was not granted, in time for the Trial to be heard.

6] Negligence count two: Legal Aid also negligently failed to advise the Plaintiff of his right to the Supplementary Legal Aid Scheme.

7] Negligence count three: On August 29^th AD 2016, Legal Aid, in an act of Gross Professional Negligence, wrongly revoked the Plaintiff’s Legal Aid Certificate, not only leaving the Plaintiff with no Legal Representation for the Trial, but also rendering him liable to pay any and all of the defendant’s costs in the PI Case.

…

15] LOSS OF CHANCE COUNT ONE: Despite several attempts to have the security costs’ order rescinded on Appeal, the Court refused and the Case is fully dismissed with no further Plaintiff recourse available.

16] LOSS OF CHANCE COUNT ONE: Thus, solely and only because of the defendant’s gross professional negligence, the PI case defendant escaped Justice, and the Plaintiff has entirely lost his Chance to be fully and Properly Compensated, according to the PI Statement of Damages, and holds the negligent defendant herein 100% responsible for this Loss of Chance.” [sic]

26.  The applicant has further pleaded that the revocation of his legal aid certificate caused (a) his suffering of permanent and acute chronic tinnitus and severe adjustment syndrome[5]; (b) the shock, coupled with multiple days of insomnia, which led to his visit in hospital on 2 September 2016[6]; (c) the application of the Defendant for security for costs at HK$1.6 million[7]; and (d) his personal injury action be dismissed[8].

27.  One can therefore see that the fundamental gist of the applicant’s claim in the Intended DLA Proceedings is premised on the essential allegations that (a) the DLA had wrongfully revoked the legal aid certificate, which was related solely to the HCPI Action, (b) the negligent and wrongful revocation had resulted in the dismissal of his HCPI Action, and (c) the damage he has allegedly suffered by reason of the DLA’s said negligent act was because of or related to the eventual dismissal of the HCPI Action.

28.  Plainly, all these essential and fundamental allegations in support of his claim in the Intended DLA Proceedings are or concern matters “involving or relating to or touching upon or leading” the concluded proceedings in the HCPI Action (ie, the eventual dismissal).  The intended proceedings therefore fall squarely within the terms of the RAO and RPO.

29.  Moreover, and in any event, for the following reasons, the Intended DLA Proceedings is in our view also frivolous.

30.  The applicant’s essential allegation in support of his claims in the Intended DLA Proceedings is that it is the (wrongful) revocation of the legal aid certificate which had allegedly caused the dismissal of the HCPI Action.

31.  However, the HCPI Action was dismissed because the applicant had failed to comply with the adjournment conditions imposed in Chow J’s order in adjourning the trial.  In this respect, the applicant had indeed sought leave to appeal against Chow J’s order imposing the adjournment conditions.  Leave was refused by the court of appeal in HCMP 3224/2016 (unreported, 13 September 2017, Chu JA and Poon JA (as the learned CJHC then was)) at [37] - [52] on the basis that the challenges against the making of the conditions were without merits.  The adjournment conditions are therefore held to have been validly and properly made in law.

32.  In the premises, the applicant is to bound to fail in seeking to establish the necessary causation in the Intended DLA Proceedings as the validly made adjournment conditions and the applicant’s own failure to comply with them must be regarded as intervening acts breaking the causation.  Alternatively, the applicant would need to re-open the issue of the validity of the adjournment conditions, which will be an abuse of process.  The Intended DLA Proceedings is therefore frivolous either way.

33.  We therefore agree with the Judge that leave should not be granted to the applicant to commence the Intended DLA Proceedings.

34.  Further, as with the Judge, we also cannot see any reasons in the interests of justice why this appeal should be heard.

35.  In the premises, the intended appeal has no merits at all.

D.     DISPOSITION

36.  For the above reasons, we will refuse to extend time to the applicant to appeal against the Refusal Decision, and dismiss the Amended Summons.

37.  As this application is entirely without merit, pursuant to the power under Order 59, rule 2A(8), we further order that no party may under rule 2A(7) request the determination to be reconsidered at an oral hearing inter partes.