SEAN LEONARD v. HONG KONG HOSPITAL AUTHORITY AND OTHERS

DCPI 1180/2021

[2026] HKDC 279

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1180 OF 2021

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BETWEEN

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DECISION

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1.  The plaintiff has taken out two summons before the court:

a.  Application dated 27 September 2023 for leave to appeal against the Decision of this court dated 14 September 2023 (“Application for Leave to Appeal”);

b.  Application dated 17 October 2025 for recusal (“Application for Recusal”)

Background

2.  The plaintiff discontinued this action on 3 March 2022.

3.  On 24 March 2023, Master Louise Chan ordered that the costs of and occasioned by this action to be payable by the plaintiff to the defendants to be taxed if not agreed (“the Costs Order”).

4.  On 11 April 2023, the plaintiff filed a Notice of Appeal against the Costs Order (“the Appeal against the Costs Order”).

5.  The Appeal against the Costs Order was heard before this court on 24 August 2023. The decision, handed down on 14 September 2023, (“the Decision”) dismissed the plaintiff’s appeal with an order that the costs of and occasioned by the Appeal against the Costs Order be paid by the plaintiff to the defendants to be taxed if not agreed.

6.  On 27 September 2023, the plaintiff took out the Application for Leave to Appeal with an Affidavit in support.

7.  On 1 December 2023, the plaintiff applied for the hearing for the Application for Leave to Appeal be adjourned, which was granted.

8.  On 17 October 2025, almost 2 years later, the plaintiff took out the Application for Recusal.

9.  On 21 October 2025, the court gave directions for both applications to be dealt with by way of paper disposal.

Application for Leave to Appeal

10.  For convenience, I will deal with this application first, because the majority of the grounds put forward by the plaintiff for the Application for Recusal are similar.

Legal principles

11.  The legal principles for granting leave to appeal is trite: section 63A (2) of the District Court Ordinance, Cap. 336 stated:

“Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that—

a. the appeal has a reasonable prospect of success; or

b. there is some other reason in the interests of justice why the appeal should be heard.”

12.  As for what constitutes “a reasonable prospect of success”, Hon Fok JA (as he then was) stated in the Court of Appeal judgment of KNM v HTF and others, HCMP 288/2011, under paragraph 9:

“The relevant test of whether an appeal has a reasonable prospect of success…therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”.”

13.  Paragraph 59/0/54 of the Hong Kong Civil procedure 2024 Vol 1 further elaborated as follows:

“There are many authorities for the proposition that an appeal will not be entertained from an order which it was within the discretion of the judge to make, unless it can be shown that he exercised his discretion under a mistake of law…or in disregard of principle…or under a misapprehension as to the facts…or that he took into account irrelevant matters…or failed to exercise his discretion…or the conclusion which the judge reached in the exercise of his discretion was “outside the generous ambit within which a reasonable disagreement is possible”.

14.  In short, it is well established that an appeal must show that the decision was based upon a mistake in the application of law or a mistake in finding of facts.

15.  For the latter, it is not enough to show that the judge merely exercise his discretion upon reasonable disagreements of certain arguments or evidence placed before him, but that his finding was totally outside the ambit of any possible reasonable disagreement.

16.  In this regard, Hon Fok JA (as he then was) has also put it succinctly in paragraph 23 of the judgment in the same KNM case:

“By way of preface, however, it is pertinent to note that the proposed grounds of appeal all seek to attack findings of fact made by the Judge after an evaluation of the evidence adduced before him. In the circumstances, unless the applicant can show that the Judge misunderstood the evidence, or failed to appreciate its effect, or overlooked some documentary evidence, or other indisputable evidence, which should have compelled him to a different conclusion, this court will not interfere with those findings of fact.”

17.  In other words, a proper ground of appeal on facts cannot be based on the mere observation that the judge did not agree with some arguments or evidence raised by the losing party in the original hearing: it must be shown that all the evidence presented before the Judge “should have compelled him to a different conclusion”. An appeal is not an opportunity for the losing party to rehash the same arguments in the vague hope that, someday somehow, another judge may come to a different conclusion.

The grounds for appeal

18.  According to the plaintiff’s Affidavit dated 27 September 2023 and his Submission dated 19 November 2025, the plaintiff’s grounds for appeal can be summarised as follows:

a.  During the hearing on 24 August 2023, the judge showed “apparent bias in favour of the defendant’s solicitors” and “persisted in interrupting, over-talking, changing the subject and trying to put words into the plaintiff’s mouth” (“Ground 1 for Leave”).

b.  The judge “explained away” the alleged “highly questionable conduct of the defendant’s solicitors”, which the plaintiff claimed that the Master, having similarly “failed to take into account” of such, had erred in law when giving the Costs Order (“Ground 2 for Leave”).

c.  The judge “cherry-picked” wordings from the medical experts’ reports from both sides and did not agree with the plaintiff’s submission that the medical experts “largely agreed” (“Ground 3 for Leave”).

d.  The judge did not agree that Master Louise Chan erred in law because she quoted the “wrong” order in the Costs Order (“Ground 4 for Leave”).

e.  The judge, by stating to the effect that “the plaintiff applied to withdraw his case the day after the defendant’s expert report was disclosed” would “suggest” that the plaintiff withdrew his case as a result of the defendant’s expert report, when in fact, the plaintiff only received the expert report on 17 February 2023 and the plaintiff has already filed his withdrawal application on 15 February 2023 (“Ground 5 for Leave”).

Ground 1 for Leave

19.  It is the duty for a judge to control the proceedings of a hearing and sometimes it would be necessary to remind the party that the court has already understood the point made, that the party was merely repeating the point already made, or that the court might summarise the point made by the party to show its understanding. The latter was clearly not “putting words into the mouth” of the party because if the court was wrong in its understanding, there were opportunities given to the party to correct such.

20.  As shown in the transcript of the hearing (paragraph F, p. 49), the court has specifically asked the plaintiff if he has further submissions:

Court: Yes, you have made that already. Anything else, Mr. Leonard?

The plaintiff: No, just that it’s good to see you again…

21.  Further, under paragraph M:

Court: …I just want to give you all the chance to say what you want to say…

The plaintiff: I’m happy to have appeared before you…

22.  Thus, the plaintiff has been given all reasonable opportunities to make his submissions during the hearing. Yet he has not made any complaints that the court has “persisted in interrupting, over-talking, changing the subject and trying to put words into the plaintiff’s mouth” nor taken the opportunities given to address such matters.

23.  Indeed, another example of the leniency displayed by the court towards the plaintiff was during the first hearing for the Appeal against the Costs Order on 27 June 2023. The plaintiff submitted during the hearing that he was not aware that he needed to enclose all relevant authorities in his written submission and the court exercised its discretion to adjourn the hearing to 24 August 2023 to allow all reasonable time (almost 2 months) for the plaintiff to lodge such materials (paragraph 22 of the Decision).

24.  As such, there is clearly no merit to this ground of appeal.

Ground 2 for Leave

25.  Whether there was “highly questionable conduct of the defendant’s solicitors” was a finding of facts.

26.  The plaintiff is simply rehashing the same arguments presented at the Appeal against Costs Order hearing.

27.  This court has explained its reasons in paragraphs 40 to 66 of the Decision.

28.  In such paragraphs, the court made it clear that it is only discussing some examples of “such questionable conduct”.

29.  One of the arguments raised by the plaintiff concerns the merit of the Defence. He alleged that the pleadings of alleged informed consent for use of the mouth guard was not supported by evidence so far disclosed (e.g. the written consent form etc.) and such were therefore “totally false and wholly misleading”. He claimed that this would be “the most egregious example of the defendant’s solicitors’ conduct” (paragraph 10(d) of the Plaintiff’s Submission for Leave to Appeal).

30.  The court should not conduct a “mini-trial” on merit at this stage, quite apart from the obvious fact that not all evidence (e.g. oral evidence under cross-examination at trial) was available to the court to make any such decision. In any case, the mere question of the merit of certain pleadings as decided by the court after a trial would not usually be a matter that concerned the solicitor’s conduct.

31.  Further, it is trite that the court need not address every single argument raised during a hearing in the judgment (or decision) and not mentioning such does not mean that the court has not considered the same.

32.  The plaintiff merely disagreed with the findings of facts of the court but failed to address how all the evidence presented before the Judge “should have compelled him to a different conclusion”. There is no merit to this ground of appeal.

Ground 3 for Leave

33.  There is no dispute that the legal test concerning the Costs Order is whether the plaintiff’s case is “so strong that he is bound to win had it gone to trial”.

34.  The plaintiff claims that the experts’ opinion are in “near consensus” or “largely agreed” and thus his case was strong. The court did not agree and concluded that “there are major disputes regarding the facts of the case as well as experts’ opinion on both issues of liability of causation”. It has explained its reasoning in paragraphs 74 to 86 of the Decision.

35.  The plaintiff is again rehashing his arguments. By quoting some passages from the experts’ reports and claiming that such supported his position clearly failed to address how all the evidence (including those quoted in the Decision) presented before the Judge “should have compelled him to a different conclusion”.

36.  This ground of appeal has no merit.

Ground 4 for Leave

37.  The plaintiff is again making the same argument that learned Master applied the wrong order.

38.  The court found that the Learned Master did not apply the wrong order / rule and has explained at length in paragraphs 33 to 39 of the Decision.

39.  The plaintiff argued that “neither rule was the actual source of the valid principle, but rather UK and following Hong Kong case law” (paragraph 9 of the plaintiff’s Affidavit). Even if the plaintiff was correct (which I do not agree), the dispute only concerned the exact order / rule number in the Rules of the District Court that was quoted in the Cost Order and / or the source of the underlying legal principle. There is no dispute that the correct law has been applied, i.e. the general legal principle that the party seeking to withdraw its action should pay the costs of the other party unless there are good reasons for departures.

40.  Thus, such dispute is frivolous and irrelevant to the decision process concerning the application of the legal principle. There is clearly no merit to this ground of appeal.

Ground 5 for Leave

41.  The plaintiff argued that the court, by setting out the “chronology of the legal procedure”, “suggested” that the reason for the plaintiff to withdraw his claim was the defendant’s expert report.

42.  In fact, the court did not state that at all.

43.  Quite the contrary, the court has found that Dr. Hui’s expert report (and any allegations concerning its delayed disclosure) has nothing to do with the plaintiff’s reasons to discontinue the action:

“…the plaintiff was advised by his cardiologist...and his psychologist…that he should “remove himself from the District Court case as soon as possible for the protection of his health and longevity” for fear of further atrial fibrillation attacks, which may lead to even more serious heart conditions.” (paragraph 62 of the Decision)

44.  This ground of appeal is clearly wrong and therefore has no merit.

45.  Thus, in conclusion, none of the grounds of appeal has a reasonable prospect of success, and, further, I find no reason in the interest of justice why the appeal should be heard.

Application for Recusal

46.  According to the plaintiff’s Affidavit dated 17 October 2025 and his Submission dated 19 November 2025, the grounds of recusal are:

a.  Repeated interruptions a curtailment of the plaintiff’s case submissions during the hearings (“Ground 1 for Recusal”);

b.  Omission of medical emergency context (“Ground 2 for Recusal”);

c.  Mischaracterisation of expert medical evidence (“Ground 3 for Recusal”);

d.  Totally ignoring defendants’ fabricated language of HKHA Hospital Forms in their Defence (“Ground 4 for Recusal”); and

e.  Apparent possible bias suggested in Judge’s publicly disseminated biography (“Ground 5 for Recusal”).

Legal principles

47.  It is trite that the decision by a judge or a master whether or not to reuse himself or herself from hearing a case is an exercise of discretion. An application for recusal can be made on the basis of (a) actual bias on the part of the judge or master in the sense that he or she will be unable to bring an impartial mind to bear on the submissions that will be made at the hearing or that the judge or master has in fact prejudice the matters in issue, or (b) apparent bias on the part of the judge or master as will lead a fair-minded and informed observer to conclude there is a real possibility that the judge or master is biased (Re Choy Bing Wing [2014] HKCU 670).

48.  Regarding the possibility of an appearance of bias, the Court of Final Appeal stated:

“The Court must ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.” (Deacons v White & Case Ltd Liability Partnership & Ors [2004] 1 HKLRD 291)

Ground 1 for Recusal

49.  This is substantially the same as Ground 1 for Leave, which the court has already addressed in paragraphs 19-22 above. As above, this ground has no merits.

Ground 2 for Recusal

50.  The plaintiff alleged that the judge stated that the plaintiff “was absent”  / “did not attend” the Check List Review hearing (paragraphs 13 and 14 of the Decision) but failed to mention that the plaintiff had a medical condition (atrial fibrillation attack) and was evaluated by a doctor to be unfit to attend. This omission was “obviously implying some sort of misconduct by plaintiff” and was therefore “misleading and unfair” and had “misrepresented the procedural record”. Thus, this “could lead an observer to consider whether there was an appearance of apparent bias” (paragraphs 18-21 of the plaintiff’s Affidavit).

51.  Paragraphs 13 and 14 simply listed the chronology of the events. There was no criticisms (let alone allegation of misconduct) raised against the plaintiff being absent from the Check List Review hearing. When read in their entirety, the paragraphs simply documented how (according to the defendants), certain concerns about the expertise area of the plaintiff’s expert could not be dealt with during the hearing because the plaintiff was not present.

52.  Indeed, the court has always taken into account the plaintiff’s medical condition in allowing various adjournments and time extensions whenever the plaintiff sought such due to his medical condition, the latest example being the plaintiff’s letter dated 12 November 2025 stating, inter alia:

“As I have been incapacitated with debilitating symptoms for the last few days…I have been advised today by our family doctor…to immediately get bed rest…

Accordingly, I am writing to respectfully request an extension of time for filling plaintiff’s submission….I request that you order an extension of time…to next Wednesday, 19 November, 2025…”

53.  Accordingly, the court made an order allowing the time extension as requested.

54.  Thus, I cannot see how the conduct of this court “will lead a fair-minded and informed observer to conclude there is a real possibility that the judge is biased”. I therefore see no merit in this ground.

Ground 3 for Recusal

55.  This ground is a repeat of Ground 3 for Leave, which the court has already addressed in paragraphs 34 and 35 above. As above, this ground has no merits.

Ground 4 for Recusal

56.  This is essentially a repeat of Ground 2 for Leave but in particular concerning the allegation regarding the merit of the Defence and the written consent form. I have addressed this in paragraphs 29 and 30 above and this ground has no merits.

Ground 5 for Recusal

57.  The plaintiff alleged that the Judge’s “15-year career as a defence solicitor for doctors and his medical background”, “coupled with all of…above-described conduct in this case, would lead a reasonable fair-minded and well-informed observer to conclude that there is a real possibility of the strong appearance of bias” (paragraphs 34 and 35 of the plaintiff’s submission).

58.  The plaintiff has not provided any reasons as to why having background as a medical practitioner and having acted as defence solicitors for doctors would lead to a real possibility of bias. All judges would have their own personal and work experience. I would think that many might have previous non-legal related careers. Further, in each judge’s own previous legal career, he or she would have represented either defence or plaintiff / prosecution in various cases.

59.  I cannot see how such career backgrounds alone would suggest any real possibility of bias to a fair-minded and informed observer. There is no merit to this ground.

60.  In conclusion, I find that none of the grounds support that there is any actual or apparent bias so there is no justification for the Judge to exercise the discretion for recusal.

Order

61.  The Application for Leave to Appeal and the Application for Recusal be dismissed with costs of, occasioned by and incidental to both applications be paid by the plaintiff to the defendants.

62.  If there is no agreement as to costs, the defendants shall lodge and serve a summary bill of costs within 21 days of this Decision and the plaintiff shall lodge and serve a summary list of objections 21 days thereafter. The court will assess costs summarily by way of paper disposal.