CHIANG KIN YAU, a mentally incapacitated person by his next friend, namely Cheng Hong Kei, being the Committee of his Estate appointed by the Court under Part II of the Mental Health Ordinance pursuant to the Order made by Deputy High Court Judge S.T. Poon dated 6th February 2017 v. CHUI KAI YEUNG

HCPI 899/2017

[2025] HKCFI 3096

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 899 OF 2017

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BETWEEN

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D E C I S I O N

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Introduction

1.  At the hearing on 3 October 2024, I ordered that the plaintiff’s summons dated 24 November 2023 seeking leave to file and serve the 2^nd witness statement of Wong Chung Sing and the 2^nd witness statement of Tsang Yin Yun (“the witness statement summons”) be adjourned pending the filing of amended pleadings, which were ordered at the same hearing.

2.  By consent of the parties, on 9 June 2025, I granted leave to the plaintiff to file the above two witness statements. In the same order (and also by consent), I directed that the costs of the witness statement summons be determined by way of paper disposal.

3.  This is my decision on those costs.

4.  It is common ground that the costs of preparing the two supplemental witness statements should be in the cause of the action.

5.  What is in dispute is the costs of the summons, which would include the costs incurred on preparing the summons and the affidavit evidence, and the costs of part of the hearing in October 2024.

6.  The plaintiff’s stance is that he should have those costs. On the other hand, the defendant seeks an order that the costs be the plaintiff’s costs in the cause.

7.  In my view, there are three matters which are material.

First, the plaintiff has achieved what he has asked for

8.  First, the defendant has now consented to the filing of the two supplemental witness statements. The plaintiff has therefore achieved what he has asked for in his summons. Being the successful party, absent any countervailing reason, he should have costs of the summons.

Second, the defendant’s opposition is not tenable

9.  Second, the defendant put up substantive opposition to the witness statement summons at the hearing, which I found to be untenable.

10.  His main submission was that various parts of the two statements contained submissions and/or analysis of medical records and other documents, and hence they traversed beyond the permitted ambit of factual witness evidence. For that reason, the defendant argued that leave should not be granted to admit the statements. As put by his senior counsel:

“D’s objection to the 2 Supp WS are on grounds of fundamental principles …”

11.  At the hearing, when adjourning the summons, I stated my view, which I still maintain, that the defendant’s submission was not tenable. According to his own account, Mr Wong, being the chauffeur and personal assistant of the plaintiff and having spent time with him, was giving a first-hand account of what the plaintiff had eaten, how he had slept (or not slept) in the days leading to the day of the operation. While he did refer to some medical and other records in his statement, I did not accept the submission that he was just commenting on those records. Rather, he was giving his own personal narrative with cross-references to the contemporaneous records. Hence I did not find the contents of Mr Wong’s statement to be objectionable as submitted by the defendant. As regards Madam Tsang’s statement, while I observed that she was more reciting what was in the records than stating her own views, I indicated that I would be inclined to take a more relaxed approach as regards the admission of both statements.

12.  In other words, the defendant failed in his opposition to the witness statement summons on the merits. That itself would amount to a ground for ordering him to bear the plaintiff’s costs of the summons.

Third, the plaintiff ought to have the accepted the defendant’s offer

13.  Third, the procedural history surrounding the witness statement summons is material.

14.  In the second half of 2023, two things were happening at the same time.

15.  First, the plaintiff sought the consent of the defendant for the filing of the two supplemental witness statements. That was first raised by his solicitors, Haldanes, by letter dated 12 June 2023. In the end, no consensus was reached. That led to the plaintiff taking out the summons in November of the same year.

16.  Second, the defendant took issue with the amended reply filed in November 2022. The defendant argued that some of the amendments to the reply were new particulars of negligence which ought to have been pleaded in the statement of claim, and that by pleading them in the amended reply, the plaintiff was depriving the defendant of the opportunity to respond to them in order to properly define the issues.

17.  The issue was first raised by the defendant’s solicitors, then known as Mayer Brown, with Haldanes by letter dated 24 August 2023. By letter dated 28 September 2023, with a view to “[dealing] with this matter practically”, Mayer Brown sought the plaintiff’s consent for the defendant to file a rejoinder to deal with the new particulars, with a surrejoinder to follow. That proposal was followed by further correspondence. Eventually, Haldanes wrote back in late December 2023 refusing to consent to the filing of the proposed rejoinder. The defendant then took out a summons to file a rejoinder on 3 January 2024. That summons was heard substantively together with the witness statement summons by me at the hearing in October 2024.

18.  What is relevant here is that in the course of the negotiations over the rejoinder, the defendant suggested in November 2023 that the pleadings and the supplemental witness statements should be dealt with “in one go” and offered the following terms to resolve the two issues, which I shall refer to as “the offer” below:

(1) The defendant should have leave to file a rejoinder and the plaintiff should have leave to file a surrejoinder, if so advised.

(2) The plaintiff should have leave to file the two supplemental witness statements after the filing of the above pleadings, to be followed by further witness statements of the defendant.

19.  In my view, the plaintiff ought to have given serious thought to the offer.

20.  At the hearing in October 2024, I agreed with the defendant’s initial position that the new particulars of negligence should not have been included in the amended reply. I took the view that they were material particulars in support of the plaintiff’s cause of action and because of that they should be incorporated into the statement of claim by way of amendments instead. When done that way, the defendant would have a proper chance to plead to them in their amended defence. Hence, instead of granting leave for the rejoinder, I granted leave for the statement of claim to be amended accordingly, which should be followed by consequential amendments to the amended defence and the amended reply. It was against this background that I further made the order referred to in para 1 above that the witness statement summons be adjourned in the meantime. I indicated at the hearing that if the amendments are done in order, the two supplemental witness statements should be admitted.

21.  Against this context, I am of the view that back in November 2023, the plaintiff ought to have accepted the offer. If he had done so, the parties would have submitted a consent summons for the court’s approval. For the reasons stated above, I would not have acceded to the request for the filing of a rejoinder as that was not the proper way of dealing with the plaintiff’s latest particulars of negligence. But I would have most likely made the same orders regarding the pleadings as those which I made at the substantive hearing.

22.  The significance of this is that in that situation, there would have been no need for the parties to spend further time and effort dealing with the supplemental witness statements as the defendant was in fact agreeable to the filing of the two statements if the pleadings issue was resolved at the same time or, in his solicitors’ words, “in one go”.

23.  It appears from the correspondence that the plaintiff only became aware of the offer a few days after he took out the witness statement summons. But if he had accepted the offer (which in my view he should have), that would have obviated the need for the parties to spend more time and incur more costs on the summons, including the preparation of affidavit evidence and full-blown arguments at the substantive hearing.

24.  Such costs could have been saved. In light of the procedural history, there is ground for ordering the plaintiff to bear those costs.

When everything is looked at in the round

25.  When everything is considered, I do not think that this is a straightforward case where the plaintiff should be awarded costs simply because he has achieved what he asked for in the summons. (That is the main submission of the plaintiff in this costs argument.) This is because such an order would fail to take into account the parties’ conduct.

26.  If one takes a step back and looks at the conduct of the parties from June 2023 to October 2024, the overall picture is this. The plaintiff should have accepted the offer in November 2023. If he had done so, no or only insignificant costs would have been incurred on the witness statement summons. On the other hand, at the substantive hearing, the defendant resisted leave “based on fundamental principles” which I found to be unmeritorious. It is therefore fair to say that the conduct of both parties have had a part to play in contributing to the costs of the witness statement summons.

27.  In the circumstances, I would consider that a suitable order would be to make the costs of the summons part of the costs of the action, ie costs in the cause.

28.  That was in fact what the defendant’s solicitors proposed in their letter dated 15 November 2024. In a subsequent letter dated 20 December 2024, the defendant’s solicitors improved the offer to “the plaintiff’s costs in the cause”. That offer was made “[s]olely for the purpose of saving costs and avoiding protracted argument on correspondence, and as [their] last effort to reach a compromise”. I should say that the revised offer was an entirely sensible one and the concession amply reflected the defendant’s genuine effort to try to bring closure to the matter. That remains to be the order presently sought by him in his written submissions. I would therefore so order.

Orders

29.  I order that (1) the costs of preparing the two supplemental witness statements be in the cause, and (2) subject to that, the costs of the witness statement summons, which include the costs of that part of the hearing on 3 October 2024 dealing with the summons and any reserved costs, be the plaintiff’s costs in the cause, with a certificate for two counsel.

30.  As for the costs of this paper disposal, I make an order nisi that the defendant do have costs, which are to be summarily assessed if not agreed. He is the winner in the present argument and costs should follow the event.

31.  The defendant should lodge and serve his statement of costs within seven days from the handing down of this decision. The plaintiff should lodge and serve his list of objections, if any, within seven days after that. The costs will be summarily assessed on the papers after the deadline. The documents to be lodged should be within two pages.