LEUNG TAK HING v. WU ANTHONY

HCPI 1327/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1327 OF 2016

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D E C I S I O N

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1.  This is an application by the defendant for leave to appeal to the Court of Appeal from my decision made on 19 September 2017 allowing the appeal from the decision of Master Harold Leong, made on 25 July 2017, that the plaintiff should instruct a local clinical oncology expert rather an expert from overseas and, further, granting leave to the plaintiff to appoint an overseas expert radiologist.

2.  On 6 October 2017, I directed the parties to exchange written submissions and I vacated the oral hearing for leave to appeal that had been fixed on 17 October 2017. Having perused the grounds of appeal and those submissions, I have come to the conclusion that I ought to dismiss the application for leave to appeal on the ground that the defendant has failed to establish reasonable prospects of successfully appealing against my decision.

3.  The critical factor in this case is the need for a speedy trial. The plaintiff is at the 4^th stage of lung cancer and has a shortened life expectancy.  To compel him to obtain an opinion from a local oncologist to replace Professor Nutting would have resulted in delay.  As I stated in my reasons for my decision on 19 September 2017, this was a special case which warranted a speedy trial and I allowed the appeal from the learned Master for this special reason.  It would not be just for the court to direct the plaintiff to substitute Professor Nutting with a local oncologist as his expert oncologist on liability because that was likely to cause further delay to the proceedings.

4.  Indeed, it was with much difficulty that I was able to secure 5 days from the diary of Deputy High Court Judge Raymond Leung SC[1] to hear the trial from 14 to 18 May 2018. It was impossible to fix a speedy trial and also accommodate counsels’ diaries. I decided, on 27 September 2017, that the need for a speedy trial was paramount and overriding and I directed that trial would take place before Deputy High Court Judge Raymond Leung SC from 14 to 18 May 2018, notwithstanding that those dates were not convenient to counsel. 

5.  The grounds of appeal that have been filed in respect of my alleged failure to follow the English guidelines on instructing overseas experts have missed the point. I reached my decision on 19 September 2017 for the special reason set out in §3 above and I specifically stated that I did not want this decision to be a precedent and that there were many factors that needed to be considered and debated before the court could set out established principles in this area. I identified in my decision some of those factors which would need to be debated at an appropriate time in a future case.

6.  Once I permitted the plaintiff to rely on Professor Nutting, it followed that I ought to permit him to instruct an overseas radiologist to enable ease of communication between him and Professor Nutting, just as the defendant’s expert oncologist in Hong Kong would enjoy ease of communication with the defendant’s expert radiologist in Hong Kong.  I do not see any merit in the grounds of appeal filed in respect of my decision to permit the plaintiff to instruct an overseas radiologist.

7.  Ultimately, these are case management decisions for the Judge in charge of the Personal Injury List to make.