CHEUNG SAU CHU ROSANNA v. 魯珉軒 AND OTHERS

HCPI 497/2020

[2023] HKCFI 2103

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 497 OF 2020

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BETWEEN

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DECISION

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1.  The plaintiff commenced action in the District Court (DCPI 187/2020) with the assistance of solicitors. The claim is against the 1^st, the 2^nd and the 3^rd defendants for personal injuries allegedly arising out of an incident of assault on 27 January 2017. The 4^th and the 5^th defendants, respectively the commissioner of police and commissioner of the auxiliary medical service, being represented by the Secretary for Justice, are sued for alleged delay in summoning emergency medical care. The plaintiff became acting in person subsequently. In November 2020, the case was transferred to this level of court.

2.  The case is still in the stage of case management by the master.

3.  Before this court is the plaintiff’s notice of appeal filed on 23 June 2023. Whilst the plaintiff and the 4^th and 5^th defendants use English on paper, including their written submissions, Chinese was used to conduct the oral hearing.

4.  By her notice of appeal, the plaintiff seeks to overturn the master’s order dated 1 June 2023 (“the 1/6/2023 Order”). The order, given and drafted in Chinese, were essentially as follows:

(1) The parties shall file and serve list of documents on or before 29 June 2023, to be followed by inspection of documents within 14 days thereafter (§1).

(2) The parties shall file and serve witness statements accompanied by statement of truth within 42 days thereafter. Unless otherwise directed by the trial judge, the witness statements shall stand as the evidence in chief of the witnesses (§2).

(3) The parties shall confirm to the court at the next hearing whether or not medical expert evidence shall be obtained and, if yes, the discipline(s) and identity of the medical experts (§3).

(4) Costs of the hearing in the cause.

(5) The order shall be drafted by the 4^th and 5^th defendants for approval and sealing by the court.

(6) The next checklist review hearing will be held on 21 September 2023 at 10:50 am.

5.  The plaintiff seeks to (i) stay §§1-3 of the 1/6/2023 order until the next checklist review hearing; (ii) change of the master.

The appeal

6.  An appeal pursuant to O58 of the Rules of the High Court, Cap 4A(“RHC”) is a re-hearing of the matter before the master being challenged.

7.  To begin with, O58, r1(3) provides that the notice of appeal must be issued within 14 days from the order appealed against was given. The plaintiff’s appeal is therefore out of time for 1 week.

8.  R1(3) gives the court the power to extend the time for appeal. That is not formally sought. In any event, there is no explanation by affidavit for the delay from the plaintiff. That strictly closes the door of appeal for the plaintiff.

9.  Explanation for letting the appeal out of time aside, extension of time for appeal, if ever considered, will be granted only if the appeal has reasonable prospect of success.

10.  Sensibly, the 4^th and the 5^th defendants were prepared not to labour on the issue of un-explained delay, but focused their argument on the merits of the appeal.

§§1-3 of the 1/6/2023 Order

11.  The hearing before the master on 1 June 2023 was a checklist review hearing. As expected, the master gave further case management directions, ie those mentioned above in respect of mutual discovery of documents, witness statements and medical expert evidence.

12.  The plaintiff seeks to overturn the 1/6/2023 Order, and requests for the following directions instead:

(1) Extension of time (60 days) for her to file her reply.

(2) Time (60 days) for her to seeking the 4^th and 5^th defendants for documents “owed” by them to her as they would be necessary to enable her to file her list of documents.

13.  At the same time, the plaintiff further seeks to stay §§1-3 of the 1/6/2023 Order until the next checklist review hearing. That will be 21 September 2023, which is substantially more than 3 months from the order.

14.  The court file shows that for the purpose of the hearing on 1 June 2023, the 4^th and 5^th defendants put in their questionnaire while the plaintiff put in her written representation prior to the hearing. In her representation, the plaintiff did ask for time for the purposes as mentioned above. For her application for time to file her reply, the plaintiff cited her health condition as reason. For her application for time to seek documents from the 4^th and 5^th defendants, the plaintiff gave the same reason as now stated in the notice of appeal mentioned above.

15.  The plaintiff’s application to the master for time for the purposes mentioned above is without merit.

16.  On 17 February 2022, the master gave directions setting the timetable for the filing of the defence and reply, list of documents and witness statements.

17.  On 4 August 2022, the timetable for doing so was extended.

18.  On 20 October 2022, the master further extended the time for filing the reply to 15 December 2022 and stayed the filing of list of documents and witness statements until further order.

19.  On 5 January 2023, the master gave further directions again extending the time for the filing of the reply, and gave directions for the filing of list of documents and witness statements.

20.  On 23 February 2023, the master extended the time for the plaintiff to file her reply to 6 April 2023.

21.  So far, the plaintiff has been pleading for time mainly on the ground of her health condition and need for treatment.

22.  On 20 April 2023, after hearing the plaintiff on her application and the defendants, the master further extended the time for the plaintiff to file her reply but in the form of an unless order. By that order, the plaintiff should file and serve her reply on or before 11 May 2023 or she would be debarred from doing so.

23.  The master has jurisdiction and discretion to impose an unless order: see O1A, O1B, r1(3)(b), RHC. That the master would see fit to considering exercising her discretion to impose the unless order, in view of the procedural history, is not surprising. Nor does it appear to be exercise of discretion without reasonable ground.

24.  In any event, there was no appeal against the unless order.

25.  Indisputably the plaintiff defaulted in complying with the unless order. As such, she has been debarred from filing her reply as of 12 May 2023.

26.  In the circumstances, there was no more issue of extension of time for filing the plaintiff’s reply as at the time of the checklist review hearing on 1 June 2023.

27.  Nor was there proper application for relief against sanction even after the expiry of the time prescribed for compliance of the unless order pursuant to O2, rr4 and 5, RHC.

28.  Even assuming that the plaintiff’s written and oral representation to the master at the hearing on 1 June 2023 were to be entertained as an application for relief against sanction, there would have been no justification for granting such relief.

29.  First, by the unless order, the plaintiff should file and serve her reply on or before 11 May 2023 or she would be debarred from doing so. Contrary to the plaintiff’s complaint at this hearing, there could be no reasonable basis for failing to apprehend the terms and effect of the order. The order was spelt out in Chinese during the hearing. The order speaks for itself insofar as the effect of default is concerned.

30.  Second, the plaintiff simply persisted in citing her health condition and need for treatment as the reason for time to comply with the case management directions. In view of the procedural background and the repeated extensions of time summarized above, it was not unreasonable overall balance of the interest of justice to impose the unless order as a reasonably necessary means to ensure expeditious proceedings in the action which arose out of an incident and alleged injury back in 2017.

31.  Likewise, even assuming that an application for relief against the sanction under the unless order had been before this court on this occasion, a similar conclusion would have been drawn so that no relief should be granted.

32.  As to the request for time for “follow-up by chasing” the 4^th and 5^th defendants for all the documents “owed” by them to her, the basis of the plaintiff is that she would need those documents to compile her list of documents. This suggestion shows her lack of proper understanding of the obligation of discovery of documents.

33.  Discovery of documents is a mutual obligation. Under O24 of the RHC, it is the parties’ obligation to disclose by way of list of documents in the prescribed form the documents relevant to the cause and matter in dispute which they are in their respective possession, power and control. If the 4^th and 5^th defendants are in possession or control of any of such documents, it would be their obligation to disclose them by way of list of documents. The exercise is not for them to supply the documents to the plaintiff to enable her to disclose them as her documents.

34.  In the event that the plaintiff has grounds for believing that any defendant is in possession or control of certain documents which are not being disclosed, it will be a matter of application for specific discovery. There was no such formal application before the master on 1 June 2023. In any event, that would have had nothing to do with the plaintiff’s own discovery obligation under the master’s order made on that day.

Change of the master

35.  The request can only be understood to be that for the recusal of the master from the case.

36.  There was never any formal application before the master for her recusal. Therefore, there was no order, be it made on 1 June 2023 or not, which could be appealed and now heard by this court.

37.  Even assuming this court were to entertain such an application of the plaintiff on this occasion, such application would have been devoid of merit.

38.  The principles governing recusal of a tribunal from a case were set out in Deacons v White & Case Limited Liability Partnership (2003) 6 HKCFAR 322 and explained in Falcon Private Bank Limited v Borry Bernard Edouard Charles Limited & Anor (2014) 17 HKCFAR 281 by the Court of Final Appeal. The test is whether the circumstances would lead a fair-minded and informed observer to conclude that there is a real possibility that the tribunal is biased. The party seeking recusal must justify the recusal by substantiating the logical connection between the conduct giving rise to the apprehension of bias and the possibility of departure from impartial decision making.

39.  The central theme of the plaintiff is her criticism against the master for unfair dismissal of the former’s repeated citation of her health condition and need for treatment as reason which has been preventing her to complying with the case management directions and timetable. The plaintiff complains that the master was seen to have favoured the proposed directions of the 4^th and 5^th defendants time and time again. Hence abuse of process on the part of the 4^th and 5^th defendants as well as bias on the part of the master.

40.  However, the fair-minded and informed observer would not assume on the basis of the fact that the tribunal has disagreed with or decided against a litigant and then conclude that the tribunal will approach any matter involving the litigant in the future with his mind closed or with pre-judgment regardless of the circumstances. In view of the court record of what has happened in the procedural history, the plaintiff falls far short of coming close to satisfying the test both in line with the relevant principles and in terms of the requisite affidavit evidence necessary for substantiating her serious criticism against the master.

Order

41.  The appeal is out of time and devoid of merit, and is therefore dismissed.

42.  Following the event, the plaintiff shall pay the 4^th and 5^th defendant’s costs of and occasioned by the appeal. The plaintiff was heard on the statement of costs presented by the 4^th and 5^th defendants at the present hearing. Considering the items, but removing the overlapping extent of the items of work, and thus costs incurred, and factoring in the actual hearing time, the costs are summarily assessed at the sum of HK$25,000, which the plaintiff shall pay within 14 days from the day hereof.

43.  The 1^st and 3^rd defendants were present but took no positive stance and made no submission. There is no order as to costs between them and the plaintiff.