SZE YIN YUNG for herself and other eligible family members of NG KI LUN, deceased v. TAI HING CAFE LTD

DCEC 963/2018

[2019] HKDC 1523

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 963 OF 2018

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DECISION

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1.  This summons was issued by the respondent for leave to adduce a medical expert report of a psychiatrist, Dr Wong.

2.  The applicant’s solicitors, several days before the hearing today, wrote to the other side indicating their lack of objection.  The only issue is cost.

3.  During the hearing, I have the opportunity of hearing from Ms Wong, solicitor from the applicant, and Ms Kwok, counsel for the respondent.  In the course of the discussion between this court and with Ms Wong and Ms Kwok, more evidence, some which was not so apparent before the hearing, has emerged.

4.  It is now clear that the respondent wishes the medical expert to establish several matters.  First, the level of the drugs that were found in the deceased’s body. Secondly, the effects of the drugs as specified in the documents in relation to the deceased’s death. Thirdly, the effect of the drugs found on the deceased.

5.  After having had the opportunity of hearing from the parties and reviewing the documents again, notwithstanding the agreement or the lack of opposition from the applicant, I am not inclined to allow the adducing of the medical expert evidence.  Apart from the fact that the application was indeed made in a very late stage, it is now apparent that the death report, which contains detailed information surrounding the circumstances of the deceased’s death, was already available to the respondent’s solicitors back in June 2018. 

6.  This application, however, was only made at the stage when the parties were ready to set the case down for trial when discovery was completed, witness statements were filed and exchanged.  The respondent in my view, has no excuse for the late application as evidence that allowed such application to be made was already available to the respondent much earlier.

7.  Apart the lack of good reason for the late application, I have also given very serious consideration as to the probative value of the intended evidence.  As I have indicated to Ms Kwok, even if one proceeds on the basis that the psychiatrist is able to give positive or affirmative answer to the questions the respondent poses for the psychiatrist, it will only at the most shows that the drugs found in the deceased’s body might have a mind altering effect.  But then I do not think the psychiatrist is in a position to give a conclusive opinion as to the actual cause of death.  There were no eye-witnesses.

8.  I found during the hearing that there is in fact already available in the evidence that throws much better light on the real issue. Firstly, a conclusion of an investigating marine officer on the circumstances of death, which conclusion, if accepted by court, would be favourable to the respondent. 

9.  Secondly, during the short adjournment that I gave to the parties, it emerged that in fact there is a coroner’s signed statement setting out the cause of death.  The statement also has a case reference number.  No inquiries however have been made of the information disclosed in the statement. In the circumstances, I take the view that both parties have not made any proper investigations into the evidence of this case.  Had more inquiries been made earlier, it might not have been necessary for the present application to have been made.

10.  In any event, from the reasons I have just given above, I do not take the view that the intended psychiatrist’s report has any probative value in the issue on causation.  For these reasons, notwithstanding the lack of objection, I decline the application for the purpose of saving costs. I direct this case be set down for trial.

(Discussion re costs)

11.  I have just indicated in the course of my discussion with Ms Wong, I find that Miss Wong has acted irresponsibly by having totally ignored the summons.  Instead of responding to the summons quickly, the aided solicitor ignored it until just very shortly before the hearing. Despite the court’s requisitions, there was no response from the applicant.  I was told that the handling solicitor was away, but that should not be an excuse for granting costs in favour of the aided applicant.  I accept Ms Kwok’s submission that there should be no order as to costs.  Legal Aid taxation.