XCHRX WONG SUI CHU v. HUNG PING CHUN AND ANOTHER

HCPI 960/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 960 OF 1999

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REASONS FOR DECISION

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1. This action came before Master Cannon on the 27 March 2000 for its Check List Review. The Solicitors for the Defendants had conceded liability and judgment had been entered on the 25 November 1999. Master Cannon heard argument on 20 and 21 March relating to the admissibility of a report from the consultant Psychiatrist Dr Wong Chun Kwong following an interview by him with the Plaintiff earlier this year. The matter was not completed on 21 March and was resumed on 27 March when, in the light of the contentions by the Defendant's Solicitors, the Learned Master referred the matter to me.

2. The report by the consultant Psychiatrist did not follow the expected form. It was apparent that Dr Wong had video-recorded the interview, purportedly with the consent of the Plaintiff. The report was prepared with references to the video-recording. The Defendants Solicitors argued that in two cases in which they had appeared before me I had made an order admitting such reports in evidence, and that there was a precedent as a result. I had done no such thing. In the two isolated cases referred to I had ordered that the video-recording be released to the Plaintiff's Psychiatrist for his consideration. I had no intention of allowing such a development without further consideration.

3. It is now apparent that there are three cases in which this consultant Psychiatrist has taken to this practice. The same firm of Solicitors for the Defendants is concerned. There may be other instances, I do not know yet. The situation is not therefore isolated.

4. A number of clear facts emerged in the course of my investigation. The Plaintiff's Solicitors were not told of the likelihood of the interview being recorded and therefore were not asked for their consent. The "consent" obtained by the psychiatrist concerned was not an informed consent, the Defendants' Solicitors having tried to convince me that Dr Wong's sentence:

"I also explained my plan to videotape the subsequent examination."

meant that consent was freely given. It was not. The sentence is unequivocal in its content.

5. Dr Wong was not instructed to video-record the interview. He had acted on his own initiative. He should not have done so.

6. Although the Defendants' Solicitors had not specifically instructed him to indulge in this practice, they knew, as was admitted to me, that he was likely to do this by reason of past reports provided to them. Despite this knowledge they had done nothing to alert the Plaintiff's Solicitors and obtain their agreement. It was tantamount to a deception, and unprofessional.

7. The practice of video-recording such interviews is not approved. It is quite unnecessary. Only in exceptional circumstances should such a video-recording be considered and then it must be by agreement of all concerned, in accordance with an agreed protocol and only where there is a joint examination/interview by the consultants for the parties concerned. It will still require court approval as to its admissibility.

8. The extra cost generated is significant. In the three reports I have considered, the consultant's hourly fee charged ranged from $4,600.00 to $4,800.00. In each case over two hours was taken up with the consultant's consideration of the video-recording. This added between $10,000.00 and $16,000.00 to his bill.

9. It does not take much imagination to see the potential for dispute between psychiatrists as to how a movement or a look should be interpeted on a particular day, at a particular time, in a particular environment. It would have the capacity to open up an unending stream of irrelevance. I expect this practice to cease forthwith.

10. As a consequence of the Defendants' Solicitors stance and wholly erroneous submissions, three hearings before Master Cannon were wasted. They will pay the Plaintiff's costs of those hearings forthwith on a Common Fund basis. I invite the Solicitors for the Plaintiff to submit to the court and to the Defendants' Solicitors within 3 days, a short statement of the costs involved (less than one page will suffice - a costs draftsman is not to be employed). The Defendants are to submit a short note (less than one page) of their objections to any items. I am exercising my discretion under Order 62 rule 9(4)(b). The costs of the hearing before me will remain costs in the cause since that was essentially a Check List Review hearing. These orders for costs are orders nisi.