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

HCPI 1114/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1114 OF 2006

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D E C I S I O N

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INTRODUCTION

1.  On 29 September 2016, the court handed down a decision (“the Decision”) dismissing the plaintiff’s summons dated 14 September 2016, save that the court granted an extension of time up to 7 November 2016 for the plaintiff to comply with a condition imposed by the court for adjourning the trial on 7 September 2016, namely, that the plaintiff shall pay to the defendant the sum of HK$438,491.60 in respect of outstanding taxed costs and further pay the sum of HK$1,200,000 into court as security for various costs orders previously made in favour of the defendant which have not yet been taxed as well as the defendant’s costs thrown away by the adjournment of the trial (“the Adjournment Condition”).

2.  By a letter to the court dated 2 October 2016 (“the Letter”), the plaintiff applied for leave to appeal against the Decision to the Court of Appeal.  With the agreement of the parties, the application is dealt with by way of written submissions without any oral hearing.

3.  This is the court’s decision on the plaintiff’s application for leave to appeal.

The decision

4.  In the Decision, the court dealt with a number of applications made by the plaintiff in his summons dated 14 September 2016.  In particular, the court refused:-

(1) to stay or set aside its earlier order made on 5 September 2016 directing the trial to commence on 7 September 2016;

(2) the plaintiff’s recusal application; and

(3) to stay or set aside the Adjournment Condition.

APPLICABLE PRINCIPLES

5.   Under section 14AA(4) of the High Court Ordinance, leave to appeal from an interlocutory judgment or order of the Court of First Instance shall not be granted unless the court hearing the application for leave to appeal is satisfied that:-

(1) the appeal has a reasonable prospect of success; or

(2) there is some other reason in the interests of justice why the appeal should be heard.

6.   The expression “reasonable prospect of success” for the purpose of section 14AA(4)(a) has been interpreted to mean that the prospects of success of the appeal are more than “fanciful” but do not have to be shown to be “probable”: see SMSE v KL [2009] 4 HKLRD 125, at paragraph 17 per Le Pichon JA.

THE PROPOSED GROUNDS OF APPEAL

7.   The Letter consists of 3 main paragraphs.

8.   In the first paragraph of the Letter, the plaintiff reiterates his complaint about Dr Choa’s report dated 3 September 2016.  That report was placed before the court on 5 September 2016 when the court directed the trial to commence on 7 September 2016.  As explained in paragraph 14 of the Decision, the plaintiff’s criticism of Dr Choa’s report is entirely misplaced because, as a matter of fact, the court did, on 7 September 2016, adjourn the trial to new dates to be fixed, giving the plaintiff the benefit of the doubt in view of two medical certificates produced by him.  It is clear that the court’s decision made on 5 September 2016 to adjourn the trial to 7 September 2016 has been overtaken by events.  The plaintiff’s complaint about Dr Choa’s report, even if valid (which the court does not accept), is irrelevant to any issue which may have to be determined by the Court of Appeal.

9.   In the second paragraph of the Letter, the plaintiff repeats his submission in respect of the decision of Barma J (as he then was) in HCSD 31/2009 on 17 June 2010 and contends that the court is precluded by the doctrine of res judicata from imposing the Adjournment Condition.  As explained in paragraphs 25 and 26 of the Decision, the learned Judge was there dealing with a completely different situation.  In particular, what was before the learned Judge was the defendant’s statutory demand on the plaintiff for payment of various costs, and the question was whether it was disputed in good faith on substantial grounds.  The doctrine of res judicata simply has no relevance to the present situation, which relates to what, if any, condition should be imposed for granting an adjournment of the trial.

10.   In the third paragraph of the Letter, the plaintiff again raises the issue of recusal, but on grounds different from those previously advanced on 23 September 2016.  Four new grounds have been raised, on which I shall briefly comment below:

(1) First, it is contended that I am biased against the plaintiff because of what I allegedly said in the course of a hearing (which has not been identified) as recorded in a transcript. (which has not been produced).  What was said must of course be read and considered in the proper context.  I do not consider that the plaintiff has shown any or any sufficient ground or basis for the allegation of bias or apparent bias.  In any event, the Court of Appeal would be much better placed to determine whether leave to appeal should be granted on an allegation of this nature.

(2) The second ground is that I sought assistance from the defendant’s counsel on various legal issues, and the third ground alleges that I may be related to a person called Anthony Chow against whom the plaintiff has previously lodged an official complaint.  Both grounds are frivolous.

(3) The fourth ground is that, in view of the depth, magnitude and complexity of the present case, it should be assigned to a judge with far more experience in personal injuries cases.  While I do not consider that this is any basis for recusal, again the Court of Appeal would be much better placed to determine whether leave to appeal should be granted on this ground.

11.   Overall, I do not consider that the various grounds raised by the plaintiff can begin to make out any case of bias or apparent bias, applying the objective standard of the fair-minded and informed observer as endorsed by the Court of Final Appeal in Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd (2014) 17 HKCFAR 281. 

12.   The plaintiff has made some further submissions in his reply dated 25 October 2016 relating to:-

(1) his criticism of Dr Choa’s report;

(2) his ability to comply with the Adjournment Condition;

(3) the doctrine of res judicata arising from the aforesaid decision of Barma J;

(4) case management, and why the defendant would suffer no prejudice arising from an adjournment of the trial; and

(5) his recusal application.

13.   The reply submissions merely amplify points previously made by the plaintiff without adding anything new. I do not consider that they raise any ground of appeal which has a reasonable prospect of success.

14.   Lastly, in a letter dated 28 October 2016, the plaintiff complains that he did not receive a copy of a letter from the Legal Aid Department to the Court dated 31 August 2016 until the Legal Aid Department sent a copy of it to the plaintiff on 28 October 2016.  The plaintiff says that had he been given a copy of the letter, he would have been able to make some different or further submissions at the hearing on 1 September 2016.  However, as recorded in paragraph 23 of the court’s decision dated 2 September 2016, a copy of the letter was shown to the plaintiff in the course of the hearing on 1 September 2016. The letter is a short one, consisting of only 1 page, which the plaintiff could easily comprehend.  The plaintiff did not suggest at the hearing that he needed time to consider the contents of the letter.  The substantive part of that letter was also recited in paragraph 23 of the court’s decision.  Further, the court’s decision on 1 September 2016 refusing to adjourn the trial has been overtaken by events.  In all the circumstances, the plaintiff’s complaint of prejudice arising from the non-receipt of the letter from the legal Aid Department dated 31 August 2016 is, in my view, plainly without substance.

disposition

15.   In all, the court is not satisfied that the plaintiff’s proposed appeal has a reasonable prospect of success, or there is any other reason in the interests of justice why the appeal should be heard.  Accordingly, the plaintiff’s application for leave to appeal is dismissed with costs to the defendant, to be taxed if not agreed.