KWAN YUEN MEI, ADMINISTRATRIX OF THE ESTATE OF CHAN SHUIT CHAN v. LEE SEE CHING AND OTHERS

HCMP 3045/2015

MISCELLANEOUS PROCEEDINGS NO 3045 OF 2015

(ON AN INTENDED APPEAL FROM HCPI 569 of 2009)

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HCMP 3046/2015

MISCELLANEOUS PROCEEDINGS NO 3046 OF 2015

(ON AN INTENDED APPEAL FROM HCPI 570 of 2009)

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(heard together)

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J U D G M E N T
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Hon Poon JA (giving the Judgment of the Court) :

Introduction

1.  For the reasons set out in his judgment dated 25 September 2015 in HCPI 569/2009 and HCPI 570/2009 (“the Decision”), Lok J ordered that (“the Order”) :

(1) the revised statement of claim be set aside for irregularity;

(2) the plaintiff’s claim for assault and battery be dismissed;

(3) the plaintiff be restrained from making further applications to the court in the two personal injury actions without prior leave by the Judge as the designated judge (“the RAO”); and

(4) the plaintiff shall pay the defendants costs.

2.  By a summons dated 8 October 2015, the plaintiff applied to the Judge for leave to appeal against the Order.  On 10 November 2015, the Judge dismissed the application on the ground that leave to appeal was not required.

3.  The plaintiff then applied to the Court of Appeal for an extension of time to appeal against the Order by a summons dated 16 November 2015.  Pursuant to our directions, this application is to be disposed on paper.  We now hand down our judgment.

Background facts

4.  The background facts have been well summarized by the Judge in an earlier decision dated 9 October 2012.  We shall not repeat them here.

The four factors

5.  In deciding whether an extension of time to appeal should be granted, the court will take into account :

(1) the length of for the delay;

(2) the reasons for the delay;

(3) the chances of success of the appeal if extension of time is granted; and

(4) the degree of prejudice to the respondent if extension of time is granted.

6.  We will discuss these factors in turn.

Length of delay

7.  Here, the setting aside the revised statement of claim and the dismissal of the plaintiff’s claim for assault and battery determine the plaintiff’s substantive right in a summarily way.  The time to appeal is 28 days from the date of the Order. In other words, the plaintiff should have lodged the appeal on 23 October 2015.  The present summons is dated 16 November 2015.  So the plaintiff was effectively late for 24 days.  The delay is not negligible but we accept that it is not very serious.

Reasons for delay

8.  The plaintiff explained that she did not know that an appeal against the Order lies as of right to the Court of Appeal.  She therefore mistakenly took out the leave application before the Judge.  After the Judge’s dismissal of her leave application, she took out the present summons.  But by then she was already out of time.

9.  Normally the court does not accept a mistaken view on the applicable law as a valid excuse for failing to comply with the rules of the court, including the time to lodge an appeal.  That is so even if the defaulting party is acting in person. But that should not be a determinative factor.  In our view, the most important factor in our consideration is the merits of the plaintiff’s appeal.

Merits of the appeal

10.  The plaintiff put forward numerous grounds of appeal.  They boil down to the following main points which we will consider in turn.

11.  First, she complained that all the hearings conducted and orders made below were unfair.  The medical treatments given by the defendants to her late mother constituted a criminal assault and battery.  The court below should not have dismissed the claim for assault and battery but should have referred it for criminal investigation and prosecution.

12.  We have read the papers in the appeal bundles.  We can see no substance whatsoever in the complaint of procedural unfairness or irregularity.

13.  The two personal injury actions are civil actions in which the court is only concerned with the civil disputes raised and the civil remedies that the plaintiff might be entitled to claim on her cause of action of assault and battery.  In determining the two actions, the court needs not and is certainly not obliged to refer the plaintiff’s complaint for criminal investigation and prosecution.

14.  We have read Lok J’s reasoning in the Decision with care.  We agree with him entirely as to why the revised statement of claim had to be set aside for irregularity. On dismissing the plaintiff’s claim for assault and battery, the Judge noted that the plaintiff had made a belated attempt to file the correct versions of the statement of claim only in October 2014.  The Judge thought that it was too late.  He went on to say :

“The court had repeatedly emphasized to the Plaintiff the importance of complying with court orders, and she was well aware of the consequences of failing to do so. Numerous opportunities had been given to the Plaintiff to rectify the defaults, and yet the Plaintiff failed to observe the rules and the orders of the court. Under such circumstances, the Plaintiff should not be allowed to proceed with these claims against the Defendants, the quantum of which probably falls within the jurisdiction of the District Court. I therefore also allow the Dismissal Application.”

15.  Undoubtedly, when the plaintiff purportedly filed the correct versions of the statement of claim in October 2014, she was late and did so without first obtaining leave of the court to do so out of time.  The question is : whether the delay in filing the correct versions of the statement of claim, coupled with her persistent failures to comply with the rules and orders, which the Judge placed heavy emphasis on, is sufficient to deprive her the right to pursue the claim of assault and battery, by dismissal, in the overall circumstances of the case.  In our view, it is reasonably arguable that it might not.  It is therefore reasonably arguable that the Judge erred in allowing the Dismissal Application.

16.  The plaintiff next contended that she is not bound to file and serve the revised statement of claim in terms of the draft annexed to the order of the court dated 19 April 2013 because it is only a draft subject to amendment; the draft was prepared by a Mr Mak without her consent; and she is entitled to plead both medical negligence and assault and battery.

17.  Pursuant to the order of 19 April 2013, the only revised statement of claim that the plaintiff could and did file is the draft attached to the order.  It lies ill in her mouth to now say that it was merely a draft.  Whether it was prepared by Mr Mak without her consent does not take her case any further.  For one thing, we do not accept for one moment her bare allegation.  For another, if the draft revised statement of claim was prepared without her consent, then it was filed irregularly.  So even on her own case, it should be set aside on the ground of irregularity. Her insistence on pleading medical negligence only shows her defiance of the court order which struck out such claim from her pleadings.  It is not a ground of appeal.  It only makes her next complaint concerning the RAO even worse.  To that we turn.

18.  The plaintiff complained that the imposition of the RAO is unfair.  As rightly observed by the Judge, the plaintiff had repeatedly taken out unmeritorious and unwarranted applications.  There is also a track record of prolonged delay in complying with the court orders.  The Judge was entirely correct in imposing the RAO to prevent further abuse of process on her part.  We would add that given her defiant refusal to accept the court orders of striking out the claim of medical negligence, there is every real possibility that unless restrained by the RAO, she will definitely abuse the process further by taking out wholly unmeritorious applications in the future.

19.  Finally, she complained that the costs orders made below against her were all unfair.  The costs orders below are all properly made on the well established principle of costs following the event.  There is no merit in this complaint.

Prejudice

20.  On the materials before us, we can see no prejudice to the defendants if the plaintiff is given an extension of time to appeal against the Judge’s order of allowing the Dismissal Application only.

Conclusion

21.  For the above reasons, we allow the plaintiff’s application for extension of time to appeal against the Judge’s order of allowing the Dismissal Application only.  We dismiss the rest of her application.

22.  The plaintiff is directed to file and serve the notice of appeal (confining to the ground related to the Dismissal Application) within 7 days from the date of this judgment.

23.  Costs of the plaintiff’s application are reserved.