THE INCORPORATED TRUSTEES OF THE SISTERS OF THE IMMACULATE HEART OF MARY v. 曹琳 AND OTHERS

HCMP 2233/2020

[2023] HKCFI 1586

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2233 OF 2020

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BETWEEN

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DECISION

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Introduction

1.  This is the hearing of the summons dated 2 February 2023 (the “Summons”) taken out by the plaintiff (“P”) for leave to adduce expert psychiatric and psychological evidence on the current mental health condition of, and level of intellectual impairments experienced by, Sister Chio Mui Kew Maryse (“Sister Chio”).

2.  The Summons is supported by the affirmation of Cheung Ka Wai Francis (“Mr Cheung”, and “Cheung/Aff”), solicitor for P. Neither the 1^st (“D1”) nor 2^nd defendant (“D2”, and collectively “Ds”) has filed any evidence in opposition.

3.  Mr Jevons Chan appeared for P. Mr Nelson Miu appeared for D1. The generic D2 did not appear, and was not represented.

Background facts

4.  P has been incorporated under the Registered Trustees Incorporation Ordinance, Cap 306 for the purpose of carrying out missionary work under the direction of the Bishop of the Roman Catholic Church in Hong Kong through educational, medical, religious, social and charitable work.

5.  By and since a written tenancy agreement dated 30 November 2007 between the Government as landlord and P as tenant, P has become the tenant of the piece of land off Victoria Road known as No. 404, 410 and 411, Section 4, Mount Davis (the “Premises”).

6.  D1 and D2 have since about 2012 been the occupiers of the structure erected on No. 410 thereof (the “Structure”).

7.  The present action relates to Ds’ occupation of the Structure. The action was first started by originating summons of 2 December 2020. P sought possession of the Structure. The action has since been converted as if started by Writ.

8.  P’s case is that Ds’ occupation of the Structure was upon permission granted by it, on the condition that D1 and her family shall vacate upon request. P says that Ds have refused to vacate the same despite repeated requests.

9.  D1’s case is that the parties have executed an agreement dated 1 September 2011 (the “2011 Agreement”). Sister Chio signed on P’s behalf. Sister Chio was the Sister Superior of P at the material time. D1 says that upon D1 agreeing thereby to pay for the renovation of the Structure, she and her family were permitted to occupy the same. D1 says that the permission extends to her children and grandchildren even after her demise, and that they would remain be so permitted until they choose to move out voluntarily.

10.  Sister Chio (for P) and D1 (for Ds) are going to be important factual witnesses for their respective cases.

11.  Sister Chio and D1 are both in their 80s.

12.  No trial date has been fixed.

13.  Given the ages of Sister Chio and D1, and by consent, Deputy Judge H Au-Yeung on 15 November 2022 ordered that their depositions be taken pre-trial before a Judge. That exercise has been fixed to commence before this Court on 4 July 2023, with 4 days reserved.

14.  In the meantime, and according to Cheung/Aff, in the course of case preparation, Sister Chio demonstrated signs of confusion and dementia. Some medical opinions have been sought. Sister Poon Sau King, Agatha (“Sister Poon”) has also reported on the matters in her supplemental witness statement. Sister Poon is the current Sister Superior of P. A medical report dated 15 December 2022 from Dr Peter W.T. Yu has been produced. Sister Chio was diagnosed to be suffering from Vascular Dementia.

15.  It is P’s case in the circumstances that further expert psychiatric and psychological evidence on Sister Chio’s current state should be sought. The purpose of the exercise is not to dispute her mental capacity to enter into the 2011 Agreement. The purpose rather is to ascertain Sister Chio’s capacity and competence as a witness, and to assist the Court in approaching and assessing any evidence which she may competently give.

16.  D1 opposes the application, on the principal reasons that it is unnecessary or misconceived.

The bases and rationales of P’s application

17.  At §3 of his written submissions, Mr Chan explains the basis and rationale of P’s present application. He submits in particular in §3(c) that (reformatted for clarity of presentation):

“… P promptly raised this issue and sought leave to adduce expert evidence upon discovering such a diagnosis, in the hope of providing sufficient foundation (with necessary expert opinion) for this Honourable Court to consider:

(1) the background for appreciating the limitation of the evidence of such a witness who is suffering the same medical condition as Sister Chio did, and to facilitate Court in the assessment of credibility of, Sister Chio, by providing a baseline for comparison with a candid witness albeit suffering the same degree of dementia as Sister Chio[1]; and

(2) if the experts are of the view that Sister Chio is completely unable to understand the meaning and the process of giving evidence in Court, such basis of the experts’ findings so that the Court will not draw adverse inference against P for not calling Sister Chio.[2]”

The 2^nd Basis and Rationale

18.  I deal with the 2^nd Basis and Rationale first:

(a) P’s intention is to call Sister Chio if she is a competent witness;

(b) Given the medical opinions thus far available, P has concern about Sister Chio’s mental capacity as a witness. It wants therefore to obtain further psychiatric and psychological evidence in that regard;

(c) If P wants to obtain psychiatric and psychological evidence to assist itself and its legal adviser to decide whether to call Sister Chio, it is at liberty to do so. It does not need any leave from this court;

(d) P is concerned that if it ultimately decides not to call Sister Chio, in the absence of any of expert evidence explaining the reasons behind, an adverse inference may be drawn against P;

(e) An adverse inference however will not be drawn simply on the failure to call a witness. Amongst other factors, one important consideration is whether there is any explanation for that failure – see South China Securities Ltd v Lam Kwen Yuen [2012] 5 HKLRD 524, per Deputy Judge Lisa Wong (as she then was) at §7 and the cases cited therein;

(f) D1’s stance, as stated in correspondence[3] and in Mr Miu’s written submissions[4], is that P can decide whether or not to call Sister Chio, and D1 is not going to object either way; if Sister Chio is not called for medical reasons, her absence would not be without explanation, so that no adverse inference will be drawn[5];

(g) In the circumstances of this case, and given in particular D1’s stance, in the eventuality of P deciding not to call Sister Chio on medical evidence, the explanation for the decision may be given by Sister Poon. She may want if necessary to support the explanation by any medical reports that P may have obtained. The court does not need on this issue to be assisted by any expert evidence formally permitted under Order 38 rule 36;

(h) In my view, the 2^nd Basis and Rationale does not support the application.

The 1^st Basis and Rationale

19.  In relation to the 1^st Basis and Rationale:

(a) In that regard, Mr Miu has in §20 of his written submissions asked 2 rhetorical questions, that:

“What kind of ‘baseline’ can an expert give that could be of assistance to the Court? Where are the experts going to find a ‘candid’ witness that was suffering from the same degree of dementia as Sister Chio?”

(b) I find both of them to be legitimate questions;

(c) The background of Sister Chio having health issues can equally be provided by Sister Poon. This Court can take that into account when considering Sister Chio’s evidence – see by way of illustration Common Luck Investment Limited v Cheung Siu Ming, HCMP 1065/1994 (3 December 1997) at pp.6, 10-12, and Common Luck Investment Ltd v Cheung Kam Chuen (1999) 2 HKCFAR 229 at 240A;

(d) If Sister Chio is competent to be called as a witness, her credibility and reliability, and the assessment thereof, are matters for this Court. The functions of the Court should not be usurped by any experts – see ZN v Secretary for Justice & Ors, HCAL 15/2015 (11 December 2015) at §11, and Aachen (Asia Pacific) Consultants Ltd v Khoo Ee Liam, HCA 4354/2003 (25 September 2012) at §156;

(e) Irrespective of any usurpation of function, given the illusory “baseline” and the equally illusory “candid witness albeit suffering the same degree of dementia as Sister Chio”, this Court do not anticipate any expert evidence on the 1^st Basis and Rationale to be helpful;

(f) I use the word “anticipate” in the paragraph above intentionally. In Shenzhen Futaihong Precision Industry Co Ltd & Ors v BYD Co Ltd & Ors [2018] HKCA 408, the Court of Appeal observed at §18 that:

“… If it is not possible to formulate the expert issues more precisely, the party applying for expert directions should produce a draft expert report to support the application so that the court would be able to assess how relevant and necessary it is to have such evidence at the trial.”

(g) In the present application, despite D1’s legal advisers having over correspondence repeatedly suggested and urged P to produce any draft report it may want to adduce, and despite the imminent deposition-taking hearing, no draft has been prepared. This Court in the circumstances does not have the benefit of any draft reports to work with, and can only anticipate what the proposed expert evidence may be, which I do not anticipate to be helpful;

(h) During the hearing, Mr Chan fairly informed this Court, upon my request for clarification, that he was not aware of any prior authority in which leave to adduce expert evidence had been permitted in cases similar to the present one;

(i) The most relevant case which Mr Chan could point to was Li Shiu To v Cheng Pik Ng and others, HCA 416/2003 (29 June 2015). But that case concerned an application to set aside a subpoena, which involved issues entirely different from those this Court will face;

(j) Mr Chan further referred to and relied on Li Shiu To for the propositions that there can be different levels of impairment to a dementia patient. That may be so, but given all the other problems which I have highlighted above, I remain of the view that the anticipated expert evidence would not be of assistance to this Court.

Disposition

20.  For the above reasons, I refuse the application.

Costs

21.  Having heard parties, I order that the costs of the application (up to 11 am, after when this Court invited counsel’s assistance on the further directions to be given for the deposition-taking hearing, which costs should be in the cause) be to D1 in any event, to be taxed if not agreed, and that D1’s costs be assessed in accordance with the applicable Legal Aid regulations.

Further directions on the deposition-taking hearing

22.  I record that I take the opportunity to engage parties on the further directions that are required to be given for the conduct of the deposition-taking hearing. I go through with parties the procedural requirements under Order 39 rule 11 and highlight the steps required to be taken. I highlight the requirements that the depositions will have to be taken down by “the examiner or a shorthand writer or some other person in the presence of the examiner”, that unless agreed to be dispensed with, the depositions will have to be read back and signed by the witnesses, and that the depositions will have to be authenticated by me and sent “by the examiner to the Registry”.

23.  In the end, I direct that parties shall within 7 days from the date hereof reach agreement on further directions required to be given under Order 38 rule 9 and Order 39 rule 11 for the purpose of the deposition-taking hearing, the order of witness, and the allocation of time for examination.