KWONG KAR BO GABEL (a person under a disability, suing by his mother and next friend CHEUNG YUK YEE MARGARET) Plaintiff and THE ADMINISTRATORS OF THE ESTATE OF DR KAN PUN SHUI (簡本燧) (Deceased) ST PAUL’S HOSPITAL 1st Defendant 2nd Defendant

HCPI 277/2020

[2026] HKCFI 4726

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 277 OF 2020

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D E C I S I O N

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1.  This case last came for checklist review hearing on 9 January 2026 when the plaintiff’s summons was first placed before this court. By the summons, the plaintiff takes issue as to the expert in obstetrics and gynaecology and his report as well as the witness statements adduced by the 2^nd defendant. This court gave directions for the filing of further affidavit evidence and written submissions with a view to disposal of the summons on paper. This is my ruling.

BACKGROUND

2.  The plaintiff (“Gabel”) was delivered out of the womb of his mother (“Madam Cheung”) on 19 January 1989 at and under the care of the 2^nd defendant (“the Hospital”). The 1^st defendant (“Dr Kan”) was the responsible obstetrician and gynaecologist. Unfortunately, Gabel was born suffering from cerebral anoxia as a result of hypoxic ischaemic insult. On the basis that she presented herself as having significant complications in attempting to deliver the foetus naturally and/or significant risk of cord prolapse at the material time, Madam Cheung attributes the problematic delivery and the resultant disabilities of Gabel to the negligence of Dr Kan and the Hospital.

3.  3 decades later, in July 2020, Madam Cheung commenced the present action as the next friend of Gabel who is under mental incapacity. By then, Gabel was already 31 years old, and Dr Kan had already passed away for 7 years. Hence the naming of his personal representative as a defendant, on whom service had to be acknowledged by the Official Solicitor. The estate of Dr Kan is now represented by its administrators, though it has taken no positive step in defending.

4.  According to the pleading, Gabel suffered from brain damage resulting in cerebral palsy and epilepsy as well as developmental deficiency. He is said to have been suffering from asthma since childhood requiring long term medication. He has become totally dependent on others in daily life activities. His life expectancy is said to have been reduced by 20 years. Quantum is projected in excess of HK$82 million.

5.  Both liability and quantum are in dispute.

6.  Pleadings between Madam Cheung and the Hospital closed in 2022. By then, both sides have served their reports of the obstetrics and gynaecology (“O&G”) experts on liability. On behalf of Madam Cheung, they are the reports of Dr Mak Ho Leung Jimmy (“Dr Mak”) dated April 2018 and August 2021. On behalf the Hospital, it is the report of Professor Lao Tzu Hsi Terence (“Prof Lao”) dated 15 June 2022 (“the Report”).

7.  This case was first placed before this court (as DHCJ then) at the end of December 2023 when this court gave further case management directions. Pursuant to the consent of the parties, this court further made the following order on 25 March 2024:

(1)  extending the time for the parties to exchange witness statements as to fact;

(2)  giving leave to the parties to adduce medical expert evidence on liability and causation from O&G expert; on liability from an expert in nursing/midwifery; as well as on causation from an expert in neonatology and an expert in neuroradiology;

(3)  pursuant to (2) above, giving retrospective leave to the parties to adduce the expert reports already obtained, including the O&G expert reports mentioned above;

(4)  giving leave to the parties to obtain and adduce further reports from the O&G experts by late 2024.

8.  Clearly when this action was commenced, it has become impossible to hear Dr Kan as a defendant personally on the facts at the trial. In July 2024, the Hospital served their witness statements as fact from Nurse Tsang Choi Kwan (“Nurse Tsang”), Nurse Law Man Lai (“Nurse Law”) and Dr Law Chi Lim (“Dr Law”). However, none of these witnesses was personally involved or assisting Dr Kan in managing or attending to the care of Madam Cheung or Gabel at the Hospital at the material time.

9.  It was also in July 2024 when those acting for Madam Cheung first raised by letter the issue of Prof Lao as the O&G liability expert for the Hospital (“the Expert Issue”) and hence the Report. Correspondence between the parties pertaining to the Expert Issue ensued.

10.  Meanwhile the parties continued to seek from this court multiple extensions of time for serving the further medical expert reports from the experts including Prof Lao. In early February 2025, such time for Madam Cheung to serve the further reports of her medical experts was further extended. Those acting for Madam Cheung brought up the unresolved disagreement between the parties regarding the Expert Issue. In addition, they raised issue as to the admissibility of the witness statements served by the Hospital in July 2024 mentioned above (“the Statement Issue”). This court therefore directed in writing that these issues are not matters about which the court should be engaged to entertain arguments by way of correspondence. Formal application would have been appropriate.

11.  In early May 2025, this court received notification of the extension of legal aid to Madam Cheung to cover the intended application regarding the Expert Issue and the Statement Issue. That said, this court still received repeated consent applications by the parties between June and September 2025 for extension of time for the Hospital to serve the further expert report of Prof Lao. It was not until 28 November 2025 when Madam Cheung finally took out her present summons (“the Summons”).

12.  By the Summons, Madam Cheung seeks the following relief:

(1)  Leave to the Hospital to adduce the expert evidence of Prof Lao on liability and causation or to call him as O&G expert witness be revoked;

(2)  The Report be struck out/expunged;

(3)  The Hospital do seek the appointment of a substitute O&G expert in place of Prof Lao and consequential directions;

(4)  Declaration that the documents set out in the Schedule attached to the Summons[1] shall be subject to confidentiality and privilege;

(5)  Those acting for the Hospital do provide undertaking not to disclose the documents mentioned above to the Hospital or its succeeding O&G expert or any other party;

(6)  The witness statement of Dr Law be expunged on the ground that it contains expert evidence without leave of the court;

(7)  §§15-16, 22, 31-32 and 40 of the witness statement of Nurse Law be redacted, and that the redacted witness statement be served;

(8)  §§17-18, 23, 30, 35, 37 and 43 of the witness statement of Nurse Tsang be redacted, and that the redacted witness statement be served.

THE EXPERT ISSUE

13.  Essentially, the Expert Issue arose out of the fact that Prof Lao had received instruction from the Director of Legal Aid (“DLA”) and the former solicitors of Madam Cheung to provide expert opinion pertaining to her then intended claim, and had rendered 5 reports, since her application for legal aid back in 1995. The application for legal aid had been unsuccessful. It was only after successful appeal against the legal aid refusal that Madam Cheung was finally granted legal aid in 2016. Those now acting for Madam Cheung then came into the picture as the assigned solicitors.

14.  The present action was commenced 4 years later in 2020. The Expert Issue was raised in mid-2024, which was many years after those now acting for Madam Cheung have entered into the picture and 2 years after the service of the Report. As mentioned, further directions pertaining to further expert evidence, including that from Prof Lao as the Hospital’s expert, were also sought by consent. As to that, those acting for Madam Cheung claim previous ignorance of the prior involvement of Prof Lao.

15.  Essentially, those acting for Madam Cheung explained that when her former solicitors handed over the case file to them, they received no instruction in respect of her legal aid processing history. They also deemed most of the materials inherited from their predecessor as irrelevant. Hence their ignorance of the fact that the Report adduced by the Hospital came from the same expert previously consulted on behalf of Madam Cheung. It was allegedly after consulting counsel and the DLA in May 2024 when they realised that the Expert Issue should be raised.

16.  The explanation cannot be said to be attractive. One also legitimately wonders how the DLA and particularly Madam Cheung would have lost sight of the fact, which those acting for her now complain about, even after the service of the Report in 2022. That said, this may have bearing on the issue of costs, depending on the outcome of the Summons. This does not entail any waiver or estoppel argument, which also does not feature in the parties’ argument.

17.  Those acting for Madam Cheung complain that despite chasers, those acting for the Hospital had failed to confirm the position of Prof Lao regarding his prior involvement mentioned above. Hence their bringing of the same to the notice of this court in February 2025 as mentioned.

18.  The Summons refers to an attached schedule of alleged privileged documents (“the Documents”). The schedule does not exist. As confirmed during the hearing on 9 January 2026, a schedule to that effect was in fact exhibited to the affirmation of the solicitor for Madam Cheung filed in late November 2025 in support of the Summons. The Documents were described as follows:

(1)  3 reports from an English specialist obstetrician;

(2)  earlier statements of Madam Cheung;

(3)  earlier statements of the sister of Madam Cheung;

(4)  a draft neonatologist report; and

(5)  a draft neuroradiologist report.

19.  The actual copies of the Documents were obviously not disclosed on the very ground that they had allegedly been supplied in confidence to Prof Lao for the purpose of his opinion pursuant to the instruction of the DLA or Madam Cheung’s former solicitors back then, and hence protected by legal professional privilege. On this basis, they also demand the withholding of the affirmation in support of the Summons from the Hospital and any succeeding O&G expert of Prof Lao if he is excluded and replaced.

Revoking leave to adduce expert evidence

20.  There is no dispute that the court has the power under O38, r44 of the Rules of the High Court, Cap 4A (“RHC”) and the inherent jurisdiction of the court to revoke or vary any direction given in respect of expert evidence. This is the case management discretion of the court to be exercised in the circumstances of the case.

21.  The crux of the complaint of Madam Cheung is conflict of interest/position, actual or potential, on the part of Prof Lao to act as expert for the Hospital when he has failed to disclose his prior engagement to provide opinion upon the instruction of the DLA and her former solicitors for the purpose of her legal aid application for bringing her then intended claim. She complains that the Report was, or must have been, prepared with access to the information and documents from her, including the Documents, which are confidential and protected by legal professional privilege.

22.  Those acting for Madam Cheung were at one point adamant that Prof Lao and those acting for the Hospital must confirm whether or not Prof Lao has been so involved, and for that received confidential and privileged materials, including the Documents, from the DLA or her former solicitors years ago. The confirmation sought, they apparently suggest, would have determinative bearing on the issue of qualification of Prof Lao to act as expert for the Hospital and/or the admissibility of the Report. In other words, once their complaint is confirmed, they say, the alleged conflict must exist which per se excludes Prof Lao from acting as the expert for the Hospital now.

23.  Indisputably, Madam Cheung and the DLA at all material times possessed knowledge about the instruction to Prof Lao as the expert for opinion pertaining to her then legal aid application, regardless of whether or not the confirmation requested was forthcoming from Prof Lao. Further, the solicitor for the Hospital by her affirmation filed in January 2026 did not deny the fact that Prof Lao had been so instructed, and would have received materials from those acting for Madam Cheung for providing his expert opinion concerning her then intended claim.

24.  However, those acting for the Hospital has requested for identification of such allegedly privileged materials, albeit without their actual content and detail revealed. The request per se was not necessarily objectionable. Counsel for the Hospital, I am impressed, was acutely aware of the constraint, which was made clear in his submission at the hearing on 9 January 2026. In respect of documents for which privilege is claimed, it would be required to list them individually and permissible to do so by compendious description such as type or category, so long as it is possible to identify them and provided that the ground of privilege and the facts giving rise to the claim are clearly stated: see the Joint and Several Liquidators of Kong Wah Holdings Limited (in compulsory liquidation) v The Hong Kong Shanghai Banking Corporation Limited, HCCW 49/2000 (13 September 2007) at §57.

25.  As mentioned, such materials are now described in the schedule exhibited to the affirmation of the solicitor for Madam Cheung, ie the Documents. That said, in the course of his submission, counsel for Madam Cheung also refers generally to the communication during alleged meeting between Madam Cheung and/or her husband and Prof Lao. He also referred to the expectation that there might be meetings between Prof Lao and the solicitors acting for Madam Cheung then before “perfecting” the report(s) produced at the material time.

26.  The solicitor for the Hospital deposed to the confirmation by Prof Lao that the latter no longer has recollection of the details of what he had been provided or had read during the preparation of the reports under the instruction of the DLA or Madam Cheung’s former solicitors years ago, and that he also did not retrieve any material which might have once been so provided to him. Nor has the same been disclosed to the Hospital or those acting for it.

27.  Against the above background, the argument of the parties gives rise to the following questions:

(1)  Whether there was conflict of interest/position for Prof Lao to accept instruction as expert for the Hospital, having given expert opinion upon the instruction of the DLA for the purpose of Madam Cheung’s previous legal aid application with a view to lodging the then intended claim;

(2)  Whether Prof Lao was under the duty to disclose the above, and whether failure to do so when accepting instruction as expert for the Hospital constituted breach disentitling him to act as such for the Hospital; and

(3)  Whether Prof Lao, when compiling the Report, made use of the information and materials which had been provided to him, including the Documents, in the course of providing opinion under the previous instruction by the DLA/Madam Cheung’s former solicitors or will likely come to use them in the proceedings herein.

Conflict of interest/position

28.  It is necessary to put the issue of conflict of interest/position in context. In the situation of a specialist accepting instruction to act as expert for a party in a case, notwithstanding the history of having provided expert opinion pursuant to the instruction of the other party, impression of “conflict” may readily arise. However, the relevant legal principles explain that the issue is more one of substance than impression. Nor is it a matter of loyalty. Underlying the principles is the starting point that unlike professionals involved in litigating, the role of an expert, regardless of the party instructing him in the litigation, is to render his opinion independently and impartially to assist the court.

29.  Appendix E of the Rules of the High Court, Cap 4A (“RHC”) sets out the Code of Conduct for Expert Witness (“the Code”). The general duty of the expert consists of an overriding duty to help the court impartially and independently on matters relevant to the expert’s area of expertise. His paramount duty is to the court and not to the person from whom the expert has received instruction or by whom he is paid. He is not an advocate for a party.

30.  Interest or position in its proper sense primarily refers to a position or an interest in the party or outcome in the proceedings, which tends to compromise his independence and impartiality. Instances may be found in some cases cited by counsel for Madam Cheung.

31.  In Armchair Passenger Transport Limited v Helical Bar PLC & Anor [2003] EWHC 367 (QB), the expert evidence was adduced in relation to a company, which had previously employed the expert as the chief executive. In Zuber Bux v The General Medical Council [2021] EWHC 762, the expert (amongst other misconduct) accepted instruction to prepare medical expert report for the benefit of claimants of sick leave from a firm of solicitors in which his wife was a salaried partner.

32.  In Wong Kit Ming & Ors v Executor of Wong Yuen, Deceased and the Incorporated Owners of Wah Hoi Mansion DCCJ 213/2017 (5 December 2019), the court referred to the principles relevant to the issue of conflict of interest of an expert at the stage when he had to decide whether his evidence should be inadmissible or merely carry less weight. The learned judge concluded it should be the former on multiple grounds, including the revelation during the trial that the expert had acted as the consultant and project manager of the defendant for which the expert’s company was paid. That was the expert wearing two hats at the same time, when he also acted as an advocate for the defendant.

33.  Even assuming the existence of conflict in the broad sense, that per se does not disqualify an expert. In Novo Steel (HK) Limited v Peako Engineering Co Limited, HCCL 14/2012 (7 November 2014), the court explained (at §37) that the decision as to whether an expert should be permitted to give evidence in such circumstances is a matter of fact and degree. The test of apparent bias is not relevant to the question of whether or not an expert witness should be permitted to give evidence. The questions which have to be determined are whether (i) the person has relevant expertise; and (ii) he or she is aware of the primary duty to the court if they give expert evidence and are willing and able despite the interest or connection with the litigation or party thereto, to carry out that duty.

34.  In the present case, there is no real suggestion of the Expert Issue in the context of the expert’s own interest in the outcome of the cause or matter in relation to which he or she is instructed as an expert.  It is the fact that the expert engaged by a party had previously accepted instruction to render expert opinion for the purpose of the other party in relation to the same claim.

35.  In Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1 WLR 1380, the appellate court stated (at 1384G) the plain principle that there is no property in a witness so that neither one nor the other side can debar the court from ascertaining the truth by way of seeing a witness beforehand or by purchasing his evidence or by making communications to him. The court continued (at 1385D) to explain that the same applies to expert witnesses:

“Many of the communications between the solicitor and the expert witness will be privileged. They are protected by legal professional privilege. They cannot be communicated to the court except with the consent of the party concerned. That means that a great deal of communications between the expert witness and the lawyer cannot be given in evidence to the court…

Subject to that qualification, it seems to me that an expert witness falls into the same position as a witness of fact. The court is entitled, in order to ascertain the truth, to have the actual facts which he has observed adduced before it and to have his independent opinion on those facts…no matter by which side he is instructed.”

36.  In adopting the above, the Canadian court in Cousineau v St Joseph’s Health Centre 1990 Carswell Ont 439 had the following observation:

“27. It is my ruling that just because plaintiff’s counsel has consulted an expert and has provided that expert with data, including confidential data, such expert is not debarred from giving testimony in the action for the defendant. What that expert is debarred from giving is any part of the communication emanating from plaintiff’s counsel to that expert which, in itself, involves the ‘work product’ of counsel.

28. In the case at Bar, there is no implication that that will be done. Indeed, if during the trial any mention is made of any communication from plaintiff’s counsel to these doctors, the trial Judge would very likely prevent testimony as to that communication being received in evidence...What is admissible, because it is in no way in my opinion contaminated by privileged information, is the opinion evidence of Drs. Posnick and Gruss on the primary medical facts in the case on the issue of the defendant’s professional standard. The Court is entitled to have such an opinion from any expert called by counsel for either side. So, in my opinion, the basic doctrine of Harmony Shipping v. Davis applies, and my ruling is that the testimony of these doctors, if, as, and when counsel for the plaintiff decides to call them, is not prima facie, by virtue of some violation of privilege, inhibited from being given; although there may be other reasons at the time of trial that may qualify my ruling.”

37.  In Toth v Jarman [2006] 4 All ER 1276, the appellate court (at §100-102) gave the following explanation along the same vein:

(1)  The answer to the question of whether the presence of conflict of interest automatically disqualify an expert is ‘no’. Instead, the key question is whether the expert’s opinion is independent.

(2)  The expert’s opinion must be independent of the parties and the pressures of litigation, uninfluenced as to the form or content by the exigencies of litigation. He or she should never assume the role of an advocate for any party.

(3)  The need for the expert to give an independent opinion flows from his duty, which overrides any duty which the expert may owe to his client.

(4)  Referring to the Civil Procedure Rules (“CPR”) 35.3, the court pointed out that an expert witness has an overriding duty to help the court impartially and independently on matters relevant to the expert’s area of expertise. An expert witness’s paramount duty is to the court and not to the person from whom the expert has received instructions or by whim he is paid. An expert witness is not an advocate for a party.

38.  The CPR provisions mentioned above are essentially the same as the general duty of expert to the court as set out in the Code pursuant to O38, rr35, 37B and 37C of the RHC in Hong Kong.

39.  In Hong Kong, the court cited Toth (above) with agreement in Daimler AG v Leiduck & Anor (No 2) [2013] 5 HKC 220, and explained (at §§49-50):

(1)  The matter still boils down to the questions whether privilege/confidential information had been provided by one party in the course of their communications and, if so, whether the expert has disclosed or misused such information in acting as expert witness for the other party.

(2)  To attach privilege or confidentiality to a piece of information imparted in a communication by a solicitor with a third party on behalf of his client, that information must itself be information for which privilege can be claimed by the solicitor’s client against others or which has the essential quality of being confidential. The third party cannot be restrained from receiving the same information from another client or obtaining it from public avenues or from using the information so received or obtained from such other client, merely because he has been given it first by the earlier client.

40.  Insofar as Madam Cheung argues that apparent conflict of interest/position by the fact of having received instruction and information from her and her former legal representatives per se disqualifies Prof Lao from acting as expert for the Hospital, I am of the view that this is over-simplification of the necessary consideration. As counsel borrows from what the Canadian court in Towers Ltd v Quinton’s Cleaners Ltd 2009 CarswellMan 410 described (at §55), this would be tantamount to mere reflexive application of the phrase ‘conflict of interest’.

Failure to disclose

41.  On behalf of Madam Cheung, it is argued that when he accepted instruction to act as expert for the Hospital, Prof Lao has failed to disclose, or has consciously withheld, the fact that he has previously received instruction from the DLA and the former solicitors for Madam Cheung to provide expert opinion pertaining to her then intended claim. Counsel for Madam Cheung refers to the ‘Best Practice Guidelines for Expert Witnesses’ published by the Hong Kong Academy of Medicine (“the Guidelines”) to illustrate such duty.

42.  Counsel for the Hospital argues that no code of best practice can arrogate to itself the power to displace the common law principles discussed above; and in any event, the Guidelines did not come into existence until 2023 and its juridical basis has not been identified. As mentioned above, the Code set out in Appendix D of the RHC is mandatory for all the expert witnesses to follow throughout the legal proceedings. The Guidelines do not possess such juridical standing. Nor do they apply to disqualify the admissibility of the expert evidence.

43.  Without denying the possible relevance of the Guidelines as corroborating expected standard of an expert in discharge of his duty, the duty and its compliance nevertheless is premised on the situation as one of conflict of interest/position as a matter of fact. The duty to disclose under §10 is premised on the conflict as explained in §11 whereby conflict may arise in a variety of circumstances such as professional or personal involvement with one of the people involved in the case (eg the instructing party, the opposite party, the patient concerned) or when he has a personal interest in the outcome of the case. The key, as elaborated in §12, is that the expert should have no interest, and seen to have no interest, in the outcome of the case. Hence apparent alignment with the above discussion so far.

Breach of confidentiality and professional privilege

44.  Therefore, the real question is whether in compiling the Report, Prof Lao made use of the information and materials conveyed to him in the course of his previous instruction from the DLA or the former solicitors for Madam Cheung.

45.  On this, counsel for the Hospital submit that a document does not become privileged just because it has been passed through a solicitor for the purpose of litigation. The schedule of the Documents exhibited to the affidavit of the solicitor for Madam Cheung, counsel argue, is no substitute for formal discovery pursuant to O24, r5(2) RHC. Counsel argue that Madam Cheung has failed to properly claim privilege by way of list of documents.

46.  This is not entirely right.

47.  A document is included in Schedule 1, Part 2 of the list of documents as notice of claim of privilege over it from disclosure in the legal proceedings on grounds set out pursuant to O24, r5(2). The nature of a document being so privileged from disclosure does not come about because of such notice of claim by appearing in the list. It appears in the list because its nature is said to be privileged.

48.  In the present case, except for those obtainable from the medical records, which both sides expect to rely on, such materials conveyed to Prof Lao under the instruction received for providing his expert opinion pertaining to Madam Cheung’s then intended claim prima facie fall within the protection of legal professional privilege expressly provided for under sections 24(1) and (4) of the LAO[2].

49.  The question is whether Prof Lao made use of them in acting as expert for the Hospital and in compiling the Report or would like come to use them. To this question, that such documents or information had been passed to Prof Lao gives rise to no presumed answer against Prof Lao.

50.  In Prince Jefri Bolkiah v KPMG [1999]2 AC 222 cited by counsel for Madam Cheung, the chairman of the investment agency retained the agency’s auditor firm to provide forensic accounting services and litigation support in his major litigation relating to his personal financial affairs. The chairman was subsequently removed. 2 years later, government investigation into the activities of the agency caused the agency to instruct the defendant to investigate into the affairs of the removed chairman. The House of Lords held that where it is established that solicitors or accountants providing litigation services such as those provided by the auditor in question were in possession of information confidential to the former client which might be relevant to a matter they were instructed by a subsequent client, the court should intervene to prevent the information from coming into the hands of anyone with an adverse interest unless it is satisfied that there was no real risk of disclosure. The burden is on the auditor firm in possession of such confidential information to show that there no such risk.

51.  Prince Jefri Bolkiah was distinguished in A Lloyd’s Syndicate v X [2012] 1 Lloyd’s Rep 123, which counsel for the Hospital cite. There the expert had been instructed to act as expert for the claimant in relation to a reinsurance claim, for which he had been provided by the claimant’s solicitors with an expert report on a particular provision in the contract, which was followed by discussion. In a subsequent arbitration by the claimant against another reinsurer, the expert accepted instruction to provide his opinion on the same provision in the contract and the same issue for that other reinsurer. The claimant objected. To the extent to which the expert had been given confidential or privileged information which he could not divulge, the court observed that the service which the expert provided to the claimant under the previous instruction was not of the same scope, breadth or depth as the services typically provided by a solicitor (or the auditor in Prince Jefri Bolkiah). The court held that the burden of proof therefore should not fall on the expert to show that he would not misuse the information. The court also found that the expert’s report for that other reinsurer in the subsequent arbitration did not show that he had already misused confidential or privileged information provided to him or that it was likely that the expert might misuse such information in the future.

52.  As discussed below, Prof Lao, as any given medical expert, was instructed to give expert opinion on specific subjects and issues in his field of expertise. Prof Lao had no part to play beyond rendering his opinion for the purpose of the DLA in the processing of the legal aid application. How many reports had been rendered for that purpose is immaterial. Prof Lao was not involved in the assessment, including that of the merit of the intended claim, by the DLA. The position is akin to what the court in A Lloyd’s Syndicate observed as distinguishable from the position of the auditor engaged in providing litigation support services in Prince Jefri Bolkiah.

53.  In any event, and importantly, on the question of whether the confidential or privileged information provided by Madam Cheung’s side in the course of instructing Prof Lao for expert opinion then was used or misused in compiling the Report, there is not just denial by Prof Lao through the solicitor acting for the Hospital mentioned above. Prof Lao himself has spoken on this.

54.  In the Report, Prof Lao set out the specific sources of the information relevant to each topic and issue discussed, which he referred to, including the follows:

(1)  He started by stating that the content of the Report was based on the information provided in the documents sent to him, the relevant medical literature, experience as obstetrician and specialist in maternal-fetal medicine as well as understanding of the facilities and practice of obstetricians in Hong Kong over the past 40 years.

(2)  The documents provided, which he examined, were the witness statement of Madam Cheung dated 22 November 2026, the draft witness statement of Madam Cheung’s sister, the supplemental witness statement of Madam Cheung dated 13 August 2021, the documents provided to Dr Mak and the medical records.

(3)  As basis for his review of the case, Prof Lao stated that any obtainable written and contemporaneous information at the time of the events was retrievable only from the available medical records.

(4)  He gave his opinion on the likelihood of factual event featured in Madam Cheung’s account on the basis of his knowledge of the training and practice prevailing at the relevant time and his experience.

(5)  For the sequence of events, he compared and contrasted the account in Madam Cheung’s witness statement and those reflected in the medical records. As to what were and not mentioned, they were based on his view of Madam Cheung’s witness statement mentioned above.

55.  Prof Lao has indeed set out the information and documents which he did use in compiling the Report upon the instruction of the Hospital. As part of the Report, this was verified by a statement of truth. It is not readily apparent from the content of the Report that he must have used any confidential or privileged information which had or might have been passed to him from Madam Cheung’s side in his previous involvement. Nor does the content of the Report suggest the likelihood of misuse of such information in the proceedings in the future.

56.  Therefore, incidence of the burden of proof aside, if Madam Cheung and those acting for her have reason for saying otherwise, one would expect that it is their turn to specify and particularise their challenge. Those acting for her may not fairly absolve themselves from having to do so by reference to the concern about minimising prejudice due to disclosure of privileged materials. Be those the Documents now described by types or the alleged oral communication during meetings, Madam Cheung’s side has yet to specify what of the Report suggests use or misuse of such materials. It is not unfair for counsel for the Hospital to observe that those acting for Madam Cheung have gone no further than repeating their assertion of belief in the likelihood of use of confidential and privileged materials from Madam Cheung’s side, notwithstanding the time taken since their view of the Report in 2022 and objection first raised in 2024.

57.  The assessment which this court is being called upon to carry out is first, whether or not the alleged conflict of interest/position exists and to an extent and in the circumstances substantially to impair Prof Lao’s independence and ability to discharge his duty to the court; and second, whether apart from the fact that Prof Lao has received instruction from Madam Cheung’s side years ago and, in the course of that, presumably confidential and privileged materials, he has likely used them in compiling the Report or would likely use them in these proceedings. As what those acting for Madam Cheung chose to put forward, this remains perceived likelihood. At this level, the requested removal of Prof Lao is tantamount to excluding an expert by perception, which the case law warns against.

Criticism against Prof Lao

58.  Criticism is also launched against Prof Lao by reference to what he said in the Report. That, counsel for Madam Cheung argues, suffices not only in excluding the Report but also the qualification of Prof Lao as an expert. If true, the situation complained about should be so obvious that one need not wait for similar argument and submission to be made on whether the opinion of the expert should be adopted or, if adopted, what weight should be given to it, after both sides’ expert evidence has been tested at the trial.

59.  For the avoidance of doubt, the following discussion with reference to the content of the experts’ reports should not be read as shedding any light on whether any part of them would be accepted or preferred, which is a matter for the trial.

60.  Those acting for Madam Cheung complain that Prof Lao’s comments and remarks about Dr Mak and the content of his expert report exceeded the proper ambit of his duty. They also complain that Prof Lao attempted to usurp the fact-finding role of the court.

61.  As to the first complaint, one may read that Prof Lao in the Report showed no intention of holding back his opinion about the level of relevant knowledge and experience of Dr Mak as of the time of the accident. Insofar as the statement of historical fact is concerned, this cannot be faulted. Insofar as professional comity is concerned, such comment may be blunt but casts no light on the independence or qualification of Prof Lao as an expert. Importantly, Prof Lao did not end with such comment, but started with that for his discussion in the context of how one should view and assess the account of events by the persons involved, including Madam Cheung, together with the medical records. The remarks and comment made by Prof Lao did not merely serve to defame or degrade.

62.  As to the second complaint, it is trite that an expert may not usurp the role of the court in making findings of fact. Hence the expectation that the expert would provide his opinion on the basis of the competing versions of a factual scenario portrayed by the parties. The extent and manner in which this could and may be done vary according to the circumstances of the cases.

63.  That said, the expert is not prohibited from providing opinion or even scepticism about the reliability of subjective complaints or the relative likelihood of competing versions of factual scenarios by reference to the medical evidence, so long as such opinion is relevant to and necessary for the analysis and discussion that follow. Therefore, scepticism expressed does not necessarily connote lack or compromise of his independence. Whether or not the expert’s scepticism expressed in this respect would be accepted or carry weight will be a matter tested and found after trial.

64.  Counsel for Madam Cheung also points out the acquaintance of Prof Lao with Dr Kan. What was actually revealed by Prof Lao in the Report was limited to Dr Kan having been a well-known specialist in the profession and one of the honorary teachers in obstetrics during his undergraduate course as well as what he opined should have been within Dr Kan’s knowledge and comprehension in the light of the latter’s specialist experience. There is no suggestion of other personal acquaintance between the two. It will not be fair to already categorise Prof Lao as partial without considering how the reference to Dr Kan’s specialist knowledge and experience in the field featured in Prof Lao’s discussion.

65.  Those acting for Madam Cheung suggest that there is confirmatory bias on the part of Prof Lao against Madam Cheung.

66.  An expert is instructed to provide his opinion on subjects and issues within his field of expertise, which could only be expected to be the same basis on which Prof Lao was instructed to do by the DLA and the former solicitors for Madam Cheung. The opinion which Prof Lao had provided pursuant to the instruction of the DLA or Madam Cheung’s former solicitors is protected by privilege. How his opinion featured in the assessment of her legal aid application was not the part for him to be involved in or to know. To make sense of the argument now advanced, one can only assume the suggestion to be that his opinion might not have featured in favour of Madam Cheung in the legal aid processing then. However, it is not basis for condemning the expert as biased simply for that reason (assuming that that was in fact the case).

67.  That an expert having worked out similar conclusions on the same subject or issue pursuant to the instructions from opposing sides of the litigation received at different points of time may not be categorised as a clear case of bias impeaching the expert’s independence or impartiality: see Daimler (above) at §47. Insofar as it is contended that the expert set his mind on a conclusion regardless of the facts and medical evidence, this is an issue which is not made out in substance for the present purpose but must be tested at the trial.

Conclusion

68.  All matters considered, including those discussed above, this court is not satisfied that the case for excluding the Report and Prof Lao as liability expert for the Hospital on the ground that he has received instruction and confidential or privileged materials from Madam Cheung’s side for his opinion years ago is sufficiently made out. Attack on the integrity, acceptability and reliability of any part of his expert evidence is still open to her at the trial.

THE STATEMENT ISSUE

69.  As mentioned, none of Nurse Tsang, Nurse Law and Dr Law were involved in managing or attending to Madam Cheung or assisting Dr Kan at the Hospital at the material time.

Overview

70.  None of the above witnesses for the Hospital is in a position to give expert evidence without leave of the court pursuant to O38 of the RHC.

71.  These witnesses are in their respective positions to give evidence as to the factual matters according to their personal knowledge, information and belief. Evidence of thought and opinion formed of matters are not necessarily objectionable, if they were in fact held as either the witness’s perception of certain fact known to him or reference made in order to explain his certain decision or conduct as a matter of fact.

72.  Reading the evidence in context is important. References to what the medical records say and what Madam Cheung asserts in her witness statements may be necessary to provide the context, and thus the relevance, of what the witnesses intend to say in their statements.

73.  Whilst these witnesses lack the personal knowledge to comment on the version of a specific matter according to Madam Cheung or her side’s understanding of the records, they are in a position to give evidence in respect of the same matter according to their personal knowledge and experience at the Hospital at the relevant time. Whether the version aligns or contrasts with the understanding of the witnesses fall within factual evidence which the witnesses may give. Conclusion from such comparison will be a matter for the court.

74.  On this basis, the parts of the witness statements for the Hospital, which Madam Cheung, are scrutinised.

Nurse Tsang

75.  The premise and therefore extent of the evidence expected from Nurse Tsang is set out in §§1-3 of her witness statement. She was registered nurse and midwife at the Obstetric Department of the Hospital from 1977 until retirement in 2022. By the relevant time, i.e. January 1989, she would have already possessed 12 years of experience working as such. To her belief, she was the most knowledgeable of all then in the daily nursing routine at the department at the relevant time. She did carry on to state such daily nursing routine at the relevant time as she witnessed and knew at the relevant time.

76.  The objected parts of Nurse Tsang’s witness statement are §§17, 18, 23, 30, 35, 37 and 43.

77.  After referring to the labour record and nurse station record (Kardex), Nurse Tsang stated the normal management and nursing routine relevant to specific entries in these records. No objection is raised as to that until the point when Nurse Tsang came to the routine in case of non-active labour, i.e. §17. To the extent that the paragraph set out her evidence of such routine in accordance with what she witnessed and knew at the relevant time, it could exist on its own and should not be objectionable.

78.  The problem lies with the beginning sentence of §17 whereby she stated, on the basis of her understanding of the records as mentioned, her opinion that Madam Cheung would not be categorised as in active labour. Regardless of whether or not she is qualified to come to such view, this is not expected from her as a witness of fact. Nor is this necessary in order to explain her evidence which follows in the same paragraph. Her evidence as to the management and nursing routine in a case of non-active labour is what she is in a position to say as a matter of her knowledge and experience at the relevant time, just like her evidence preceding that paragraph.

79.  §18 set out the management and nursing routine in respect of contraction, including what would be done and what would not be done unless the doctor ordered otherwise. This is statement of fact known to and understood by the witness according to her daily work experience at the time. The evidence suggests no expression of opinion on the part of the witness as to what ought or ought not to be done generally or in this case.

80.  §23 is objectionable. Nurse Tsang testified beyond her understanding of what Dr Kan’s record and Kardex literally says. She purported to explain and to reconcile the two records, of which she was not personally involved in the compilation. She proceeded to provide what in her view would be the explanation, if not speculation, of why and how Dr Kan came to make the entries, and the way he did, in his record.

81.  In §§28 and 29, Nurse Tsang referred to Kardex and Dr Kan’s record at about 9pm on 19 January 1989. §30 follows, wherein she provided her interpretation of these records. Nurse Tsang stated that it did not say artificial rupture of membrane. To that extent, one can read that. However, she carried on to state that the membrane therefore ruptured on its own. This is a possible interpretation, but the court is not assisted by that from her as a factual witness for the purpose of the necessary finding or inference.

82.  Nurse Tsang started §35 by fairly admitting that she has no personal knowledge about how Dr Kan handled the situation of cord prolapse, which was also recorded in Kardex and Dr Kan’s record mentioned in §§28-29 and discussed above. However, she continued to provide her opinion on what to watch out in such situation as recorded. If necessary, assistance on such aspects should have come from the medical expert on liability, not her as witness of fact.

83.  §37 set out Nurse Tsang’s opinion on whether the posture adopted by Madam Cheung at the relevant time should suffice in relieving pressure on the cord. This suffers the same problem explained in the preceding paragraph.

84.  In §43, Nurse Tsang gave her concluding remark that on the basis of the medical records, she did not find any non-compliance or deviation in the case of Madam Cheung from the management and nursing routine in place at the Hospital or that according to her training, knowledge and experience prevailing at the relevant time. This again suffers the same problem as explained above.

85.  In conclusion, the first sentence of §17, §23, the last sentence of §30, §35 from the second sentence onwards, §§37 and 43 are liable to be expunged.

Nurse Law

86.  Nurse Law joined the Obstetrics Department of the Hospital in 1990 as registered nurse and midwife. That was after the incident in issue. Except for a brief departure before 1992, she has been working as such, and as of the time of the statement, she was the deputy supervisor of the department.

87.  The objected parts of Nurse Law’s statement are §§15, 16, 22, 31, 32 and 40.

88.  §§15 and 16 of Nurse Law’s statement are very similar to §§17 and 18 of Nurse Tsang’s statement. The discussion in respect of this part of Nurse Tsang’s statement applies.

89.  §22 of Nurse Law’s statement is very similar to §23 of Nurse Tsang’s statement. The discussion in respect of this part of Nurse Tsang’s statement applies. The same problem, that is.

90.  §§31-32 of Nurse Law’s statement are similar in terms to §32 of Nurse Tsang’s statement. No issue is taken as to the latter. However, there is difference between the two. In this part of her statement, Nurse Tsang referred to the usual practice at the Hospital prevailing at the relevant time, of which she was in a position to tell from her knowledge and experience. In §31 of her statement, Nurse Law referred to the normal practice in Hong Kong. Be it the normal practice in Hong Kong or at the Hospital, this would be her opinion to suggest, as she did, that the same was followed in the case of Madam Cheung at the relevant time which was before she joined the Hospital.

91.  §32 of Nurse Law’s statement referred to her own experience at the Hospital without reference to the case of Madam Cheung. This survives the criticism discussed above.

92.  §40 of Nurse Law’s statement is almost identical to §43 of Nurse Tsang’s statement. The discussion in this respect above applies.

93.  In conclusion, the first sentence and the first line of the second sentence of §15, the reference to the usual nursing practice in Hong Kong in the first sentence of §16, §22, §31 and §40 of Nurse Law’s statement are liable to be expunged.

Dr Law

94.  The statement of Dr Law is said to have exceeded the ambit of evidence as to fact, and his opinion is inadmissible without leave as an expert.

95.  Dr Law was not involved in the management of Madam Cheung or Gabel. As stated in §2 of his statement, he intends to give evidence on the following basis:

(1)  He has practising experience since 1982, and is familiar with the obstetrics practice in Hong Kong at the relevant time.

(2)  He has been visiting doctor of the Hospital with admission privilege since 1982, and is familiar with the working arrangements between the Hospital and visiting doctors at the relevant time.

(3)  By virtue of his long working relationship with and position at the Hospital, he is familiar with the obstetrics and nursing practice at the Hospital at the relevant time.

(4)  He has known Dr Kan since 1980s.

96.  Insofar as Dr Law seeks to give evidence as to matters within his knowledge and experience in the O&G management and nursing at the Hospital at the relevant time on the bases mentioned in (2) and (3) of the preceding paragraph, he is in a position to do as a factual witness. Dr Law may also give evidence as to matters about Dr Kan which are within his knowledge due to (4) above. If Dr Law seeks to give opinion on the basis of (1) of the preceding paragraph, he would have to be careful.

97.  §§1-15 of Dr Law’s statement contain factual evidence, which Dr Law is in a position to give on the above basis. Specifically, §§5-15 relates to his working relationship and arrangement with the Hospital as well as those concerning Dr Kan, which he suggested to be within his personal knowledge. §18 from the second sentence onwards appears to fall within the same ambit.

98.  However, §§16 and 17 as well as the first sentence of §18 contain Dr Law’s opinion or belief about Dr Kan’s arrangement with Madam Cheung, about which he claims no personal knowledge, and is expected to fall within the inference of fact which the court, not he, may have to draw.

99.  §§19-28 set out Dr Law’s evidence on the working relationship between visiting obstetricians and nurses/midwifes at the Hospital. Dr Law is in a position to speak from his personal knowledge and experience at the Hospital in those respects mentioned in these paragraphs. However, whenever he referred to the case of Dr Kan and Madam Cheung in the course of such evidence, he was speaking of his opinion and belief that what he said in fact happened in their case, which he is not in a position to do. They include §§21, 22, 25, 26, 27 and 28. So intertwined with what may be permissible parts, they are liable to be expunged.

100.  §§29-32 set out Dr Law’s evidence on the subject of antenatal care. What he stated, including reference to the case of Dr Kan and Madam Cheung, was opinion which would have been expected from an expert on the issue of liability. He may not testify as such in the present case.

101.  §§33-42 set out Dr Law’s evidence under the heading of admission to the Hospital on 19 January 1989.

102.  §§33-36 relate to the couple of rooms at the Hospital which Madam Cheung is said to have been present after admission. Dr Law is in a position to speak of those rooms and their locations, including reference to the layout plan referred to in the statements of Nurse Tsang and Nurse Law, as matters of his personal knowledge. He is also in a position to speak of the nursing manpower stationing and routine from his personal experience at the Hospital.

103.  §§37-42 set out Dr Law’s evidence relating to various practices including vaginal examination, artificial rupture of membrane, continuous fetal heart rate monitoring and continuous monitoring of contractions. As a factual witness, he would have been in a position to speak of his knowledge and personal experience in these respect at the Hospital at the material time. In that case, he would have been in a position to refer to what he understood to be the obstetrics practice in Hong Kong at the time in order to explain such knowledge and experience. This is however not entirely the way he put them in his statement. The way he put them represents what would have been opinion evidence from an expert.

104.  §§43-49 set out Dr Law’s evidence relating to the cord prolapse issue.

105.  §43 refers to Madam Cheung’s allegation that she was asked by the nurse to walk over to the nurse station for an injection. That was the context for §44, which he is in a position to speak of as a matter of personal experience at the Hospital.

106.  §45 refers to Madam Cheung’s allegation that she was taken to a specific side room for vaginal examination. Likewise that was the context for what he continued to say about the existence of such a room according to his knowledge at the relevant time, which he is in a position to say.

107.  §46 refers to the 1^st Stage Room which was suitable for vaginal examination, and the identification of the “Doctors’ Room”. These Dr Law is in a position to say as matters of personal knowledge. However, his inference, if not speculation, that Madam Cheung might be referring to the 1^st Stage Room instead of what she referred to as the side room is opinion uncalled for.

108.  §§47 and 48 sets out Dr Law’s evidence relating to the rupture of membrane. He would be in a position to tell his practice at the Hospital in recording rupture of membrane. Insofar as he seeks testify as to the interpretation of the record with reference to the usual practice in general terms, he would be giving opinion evidence.

109.  §49 relates to the occurrence to cord prolapse. He would be in a position to tell his practice as well as the nursing and midwife practice in the case of cord prolapse as matters of his knowledge and personal experience at the Hospital. However, using that to comment on what Dr Kan did in the case of Madam Cheung would be opinion evidence.

110.  §50 relates to what happened upon the decision to conduct caesarean section is made. Dr Law did not just give evidence of his practice as well as the nursing and midwife practice in such a case as matters of his personal experience at the Hospital. He did so with specific comment on what is expected to have been the case between Dr Kan and Madam Cheung at the relevant time. This is opinion evidence.

111.  §51 follows by the description of the practice arranging anaesthetic and paediatric support. Dr Law is in a position to state his experience about such practice.

112.  In §52, Dr Law confirmed there was no written protocol at the Hospital at the time setting out step-by-step instruction for handling obstetric emergency, which was left to the instruction of the doctor in charge. He is in a position to tell that from his knowledge and experience.

113.  The concluding remark in §53 was Dr Law’s opinion on the management of Madam Cheung and the birth of Gabel by Dr Kan and the Hospital, which exceeds mere comparison with his practice and experience at the Hospital at the time as matters of fact.

114.  Strictly §§16, 17, 18, 21, 22, 25-32, 39-42, 48-51 contain admissibility issues, and are liable to be expunged. It will be up to the Hospital to consider if the witness statement of Dr Law should simply be re-served with the redaction of the offending parts discussed above or alternatively to apply to replace it by a redrafted version in view of the above ruling. For the avoidance of doubt, the right of the Hospital to do so is not affected.

ORDER

115.  On the Expert Issue, §§1-3 of the Summons are dismissed. §4 of the Summons is unnecessary, and what it takes is for Madam Cheung to claim the privilege by way of list of documents. §5 is unnecessary in view of the deposition of the solicitor for the Hospital by way of affidavit.

116.  On the Statement Issue, ie §§6-8 of the Summons, the parts the witness statements of Nurse Tsang, Nurse Law and Dr Law, which are liable to be expunged as aforesaid, are expunged respectively; the Hospital do serve these witness statements with the expunged parts duly redacted within 28 days from the date hereof. Time runs during court vacation.

117.  There be liberty to apply.

118.  By the Summons, Madam Cheung seeks costs of it to be in the cause. I so order. However, the liability for the costs of and occasioned by the substantive argument should depend on the outcome. On this basis, essentially each side succeeds on one of the two issues. An order of no order as to costs of and occasioned by the substantive argument appears to be appropriate. Madam Cheung’s own costs shall be taxed in accordance with legal aid regulations. This costs order is nisi, and shall become absolute without further order, unless application is made in 14 days to vary.