ERWIANA SULISTYANINGSIH v. LAW WAN TUNG

DCPI569/2015

[2018] HKDC 1267

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 569 OF 2015

-------------------------------------

-------------------------------------

------------------

DECISION

------------------

Introduction

1.  By a summons taken out on 24 August 2018 (“the summons”), the plaintiff seeks an order to continue the post-judgment Mareva injunction obtained on 23 August 2018 (“the injunction”) until a further order made by this court.  By the injunction, the defendant is restrained from removing any of her assets within Hong Kong up to the value of HK$1,000,000.00, and the defendant is required to disclose all her assets of an individual value of HK$10,000.00 or more in Hong Kong.

2.  Having read the evidence on service adduced by the plaintiff, I am satisfied that the documents in relation to this application have been duly served on the defendant in the manner prescribed in my order made on 31 August 2018 for substituted service.

Background

3.  I would first set out the background facts.

4.  The plaintiff was previously employed by the defendant as a foreign domestic helper in Hong Kong between the period of 30 May 2013 and 9 January 2014, during the course of which she was falsely imprisoned and repeatedly tortured and abused by the defendant.

5.  The incident was reported to the police and the defendant was charged and convicted (under criminal action nos DCCC 421 & 651 of 2014, consolidated) of various charges, including inflicting grievous bodily harm, assault occasioning actual bodily harm, causing grievous bodily harm with intent, common assault and criminal intimidation.  As a result of these convictions, the defendant was sentenced to 6 years’ imprisonment.

6.  The plaintiff commenced the proceedings herein against the defendant to claim damages for her injuries suffered.  On 28 April 2015, interlocutory judgment on liability was entered against the defendant.  The hearing for assessment of damages took place on 4 December 2017.  On 21 December 2017, this court handed down a judgment in which the court awarded the plaintiff damages in the sum of HK$809,430.03, together with interest and costs.  Those costs have not yet been taxed.

7.  Subsequently, the defendant applied for leave to appeal and stay of execution pending appeal.  The application was dismissed on 11 May 2018, with costs to the plaintiff summarily assessed at HK$71,000.00.

8.  After the said interlocutory judgment was entered but before the assessment of damages, the plaintiff discovered that the defendant had, on 17 July 2015, assigned to her husband her half share in their residential property (which was then held by the defendant and her husband as joint tenants) at Flat J, 38/F, Block 5, Beverly Garden, 1 Tong Ming Street, Tseung Kwan O, Sai Kung, New Territories (“the Residential Property”).

9.  On 25 September 2015, the plaintiff issued proceedings in the Court of First Instance against the defendant and her husband (HCA 2256/2015, “the HC action”) pursuant to section 60(1) of the Conveyancing and Property Ordinance to set aside the aforesaid assignment on the ground that the purpose of which is to defraud creditors of the defendant.

10.  During the course of the HC action, it was revealed that the defendant maintained an account with HSBC (“the HSBC account”) and an account with Standard Chartered Bank (“the SCB account”).

11.  In the HC action, the final judgment and the decision on costs were handed down on 28 December 2017 and 2 March 2018 respectively.  It was adjudicated that the said assignment constituted a disposition of property by the defendant and her husband with the actual intention of defrauding the plaintiff in the sense of defeating her claim and that intention was shared by both the defendant and her husband.  The assignment was thereby set aside and it was ordered that the defendant and her husband should be jointly and severally liable for the plaintiff’s costs in the HC action.

12.  On 26 June 2018, the plaintiff conducted an updated land search against the Residential Property and found out the following:-

(1)   On 13 November 2017, the husband, acting in person, commenced HCA 2596/2017 against the defendant for an alleged loan of HK$3,055,712.00.

(2)   The husband abbreviated the parties’ names on the writ in HCA 2596/2017, putting down “YB Tsui” as the plaintiff and “WT Law” as the defendant.  Further, while the husband was acting in person, he put down the address of a law firm on the backsheet as his corresponding address.

(3)   On 20 December 2017, the husband obtained a default judgment in HCA 2596/2017.

(4)   On 1 February 2018, the defendant’s husband obtained a charging order nisi on the strength of the default judgment.  On 4 April 2018, the charging order nisi was made absolute. On 19 April 2018, the charging order was registered against the Residential Property in the Land Registry.

13.  The defendant has never mentioned the claim made by her husband during the trial of the HC action on 23 November 2017 and the hearing for assessment of damages in this case on 4 December 2017.

14.  The plaintiff also discovered that a third party money lender (GS Credit Limited) had registered a legal charge dated 14 March 2018 against the defendant’s half share in the Residential Property as security for a loan of HK$3,000,000.00 (“the HK$3 million loan”). The plaintiff has not been able to ascertain the whereabouts of the HK$3 million loan.

15.  A report was made to the Director of Legal Aid soon after discovering the above.  Subsequently, the Director of Legal Aid granted the necessary approval enabling the plaintiff to make an application for a Mareva injunction.  On 23 August 2018, the plaintiff applied for and obtained the injunction.

The principles

16.  There can be a post-judgment injunction in aid of execution where there are grounds for believing that the judgment debtor intends to dispose of assets in order to avoid execution^[1].

17.  The court is more ready to grant a post-judgment Mareva injunction for the plaintiff is entitled to enforce the judgment by executing the same on the defendant’s assets.  As said by To J in Menno Leendert Vos v Global Fair Industrial Ltd^[2]:-

“9. The nature of Mareva relief is such that the majority of applications are made at a very early stage, sometimes even before commencement of action. However, a Mareva injunction may also be granted to a judgment creditor in aid of execution of his judgment even if he had not applied for or obtained one originally: see Gee on Mareva Injunctions and Anton Piller Relief, 4th Ed at 26-30 generally and Deutsche Schachtbau-und Tiefbohr-Gesellschaft MBH v Shell International Petroleum Co Ltd [1990] 1 AC 295. The courts are much more ready to grant post-judgment Mareva injunctions because the plaintiff is a judgment creditor entitled to enforce the judgment by executing on the assets of the defendant and even to make him bankrupt or in the case of a corporation to have it wound up. As observed by Sir John Donaldson MR in Deutsche Schachtbau-und Tiefbohrgesellschaft MmbH v R’as Al Khaimah National Oil Company (No 1), [1990] 1 AC 295, such an injunction was not, strictly speaking, an injunction which fell into the Mareva category, but was an injunction granted as protection for a judgment creditor, under a jurisdiction recognised before the emergence of the Mareva jurisdiction.”

18.  Accordingly, I have to consider in the circumstances set out above, whether it would be necessary to continue the injunction for the protection of the plaintiff, who is a judgment creditor.  In my view, the answer is in the affirmative.

19.  It is clear that the defendant at least has the following assets in Hong Kong:-

(1)   A half share in the Residential Property;

(2)   Balance in the HSBC account; and

(3)   Balance in the SCB account.

20.  In the circumstances described above, I am satisfied that there would be a real risk that in the absence of the injunction, the defendant would dissipate her assets to frustrate the enforcement of the judgment obtained by the plaintiff in these proceedings. The judgment in the HC action clearly shows that the defendant was trying to assign her interest in the Residential Property to her husband with intent to defraud creditors.  Further, the genuineness of the loan claimed by the husband in HCA 2596/2017 is in doubt.  Given the finding made by the court in the HC action (ie the intention to defraud creditors by the assignment in question was shared by both the defendant and her husband) and the matters mentioned in paragraphs 12 and 13 above, HCA 2596/2017 may well be another scheme devised by the defendant and her husband for the purpose of defrauding the defendant’s creditors.

21.  For these reasons, in my judgment, the injunction is indeed necessary.

22.  The injunction contains a disclosure order requiring the defendant to disclose all her assets of an individual value of HK$10,000.00 or more in Hong Kong.  I am of the view that this disclosure order is necessary, particularly, the whereabouts of the HK$3 million loan obtained by the defendant is unknown.

Conclusion

23.  I order that the injunction be continued until full payment of all the sums due under the judgment dated 21 December 2017 by the defendant to the plaintiff or a further order made by this court.  I give the parties liberty to apply.

24.  I have heard submissions on costs.  In my view, costs should follow the event.  I order that costs of the summons, including costs of the ex parte application for the injunction and all costs reserved, be to the plaintiff, with a certificate for counsel, and to be taxed if not agreed.  The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

25.  I thank Mr Ko for the assistance provided to the court.

DCPI 569/2015

[2018] HKDC 542

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 569 OF 2015

-------------------------

-------------------------

--------------------

DECISION

--------------------

Introduction

1.  This is the defendant’s application for leave to appeal against the assessment of damages dated 21 December 2017.

2.  In her amended summons, the defendant also sought leave to appeal against the order which I made at the assessment hearing on 4 December 2017 refusing her application to rely on documents not previously disclosed by her at the assessment.  However, in the course of her submissions this morning, Ms Stephanie Wong, counsel for the defendant, confirmed to the court that the defendant no longer wishes to pursue that application and would accordingly withdraw the first proposed ground of her appeal, ie para 1(a) of the amended summons.

3.  That leaves only one proposed ground of appeal, namely that I erred in awarding excessive damages under the head of pain, suffering and loss of amenities.  In addition, the defendant also applies for stay of execution pending appeal. 

Legal principles

4.  The principle governing the threshold for granting leave to appeal is not in dispute.  The applicant needs to show that the appeal has a “reasonable prospect of success” or there is some other reason in the interests of justice why the appeal should be heard: section 63A(2) of the District Court Ordinance, Cap 336.

5.  On the “reasonable prospect of success” limb, “an applicant is required to show more than just an arguable case, but an appeal that has merits and ought to be heard, although he does not have to demonstrate that the appeal will probably succeed”: Wynn Resorts (Macau) SA v Mong Henry [2009] 5 HKC 515 at para 19, per Chu J.  In SMSE v KL [2009] 4 HKLRD 125, Le Pichon JA observed that “reasonable prospect of success” involves the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable” (at para 17).

The only proposed ground of appeal

6.  In the assessment, I awarded the sum of $450,000 for PSLA – see paras 33 to 35.  In her written submission, Ms Wong submits that the circumstances and my factual findings did not amount to a sufficient basis for the award.

7.  She refers to the four categories of disablement set down by the Court of Appeal in Lee Ting Lam v Leung Kam Ming [1980] HKLR 657.  Her submission is that the injuries suffered by the plaintiff in the present case fell below the “serious injury” category, given that no permanent physical disability was sustained.

8.  In this regard, Mr Tony Ko, counsel for the plaintiff, cites the decision of Bharwaney J in Wong Man Kin v Golden Wheel (C & HK) Transportation Co Ltd [2015] 5 HKC 570 in which the figure for the starting point for an award in the “serious injury” category (which is the least serious category amongst the four) was revised upwards to $510,000 to allow for inflation – see para 48 at footnote 3.

9.  Ms Wong accepts that to be the latest position.  Her submission is that the PSLA award which I made was excessive because an appropriate award should have been well below any award under the “serious injury” category.

10.  It must be noted at this juncture that the award which I made in the sum of $450,000 is indeed below the lowest figure for any injury falling within the “serious injury” category.  It is not marginally lower.  There is a difference of $60,000.

11.  In support of her submission that the award should have been much lower, Ms Wong relies on three cases, namely:-

(1) Chan Chung Lop v Chan Yun Sun [1999] 3 HKLRD 442;

(2) Cheng Lai Kwan v Nan Fung Textiles Ltd [1998] 2 HKLRD 729; and

(3) Lee Yuk Lan v Royaltelle International Ltd t/a The Royal Garden HCPI 187/1995, 5 August 1999.

12.  She highlights that the similarity between these three cases and the present case is that none of the plaintiffs suffered from any permanent disability.  Yet, the awards in these three cases are much lower than the present award.  They were $140,000, $150,000 and $150,000 respectively.

13.  I do not consider that the three authorities provide any useful comparison in the present case.  The first case involved an one-off incident of assault.  The second involved minor injuries as a result of a fall when the plaintiff was trying to put out a fire in a factory.  In the third case, the plaintiff slipped in a corridor in her workplace and sprained her back.  They are a far cry from the present case, in terms of the extent of injuries, their severity, and the circumstances in which the injuries were sustained.  They are also dated decisions, which all go back to the late 1990’s.

14.  There is bound to be a range of appropriate PSLA awards even if the injuries in question do not result in any permanent disability.

15.  The three authorities cited by the defendant are of no assistance to the court in assessing PSLA in the present case.

16.  Mr Ko points out that in making a PSLA award, the starting point is a comparison of the injuries in the case in question with injuries in similar cases in which awards have already been made. Consideration should then be given to any special feature which might influence the award in the particular case and only then, when a tentative conclusion will already have been reached, should attention be turned to the established guidelines.  It has been made clear that the categories of injuries laid down in Lee Ting Lam are not meant to confine damages in a straitjacket: Lau Che Ping v Hoi Kong Ironwares Godown Co Ltd [1988] 2 HKLR 650 at 653.  The remark was repeated by the Court of Appeal more recently in Chan Yuk v Dragages Et Travaux Publics (H.K.) Ltd [2000] 3 HKLRD 1 at para 10.

17.  At the assessment hearing, in line with the above approach, Mr Ko invited the court to look at the PSLA awards in a number of comparable cases.  I highlighted two of them in my judgment and came to the award of $450,000.

18.  At today’s hearing, Mr Ko refers the court to the approach adopted by the Court of Appeal when considering an appeal from an assessment of damages, Cheung Kai Chi v Chun Wo Contractors Ltd [2008] 1 HKLRD 102 (at paras 69 to 72):-

“69. Assessment of damages can never be absolutely accurate and the Court of Appeal must respect the decision of the trial judge who had heard the evidence.

70. The Court of Appeal would only interfere with the assessment of damages if the trial judge was found to be in serious error or acting upon a wrong principle of law or that the amount awarded was so high or so small as to make it, in the judgment of the appellate court, an entirely erroneous estimate.”

19.  It is therefore for the defendant here to specify the error which has been committed in the course of the assessment, such error being of the nature as envisaged in Cheung Kai Chi.

20.  In her oral submission, Ms Wong contends that the PSLA award which I made was so high that it was an entirely erroneous estimate.  However, at the same time, Ms Wong expressly confirms that she does not take issue with my reliance on the two cases cited in the assessment.  In the circumstances, I fail to see how the award which I arrived at can be said to be so high as to be entirely erroneous.

21.  I consider that the proposed ground concerning PSLA has no reasonable prospect of success.

The stay application

22.  Ms Wong accepts that if the defendant has no arguable appeal, then no stay of execution should be granted.  As Ma J said in Star Play Development Ltd v Bess Fashion Management Co Ltd [2007] 5 HKC 84 (at para 9(6)), the existence of an arguable appeal (that is, one with reasonable prospects of success) is the minimum requirement before a court would even consider granting a stay.

23.  In the present circumstances, I refuse to grant the stay as sought by the defendant.

Order

24.  The proposed ground of appeal pursued by the defendant has no reasonable prospect of success.  There being no other reason why the appeal ought to be heard, I dismiss the defendant’s application seeking leave to appeal.  I also dismiss her application for stay of execution pending appeal.

( Discussion re costs )

25.  The plaintiff do have costs of the amended summons.  The plaintiff’s solicitors having waived their right under Order 62, rule 9C(1)(b) of the Rules of the District Court, I summarily assess the costs in the sum of $70,000, payable within 14 days from today.

DCPI 569/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 569 OF 2015

-------------------------

-------------------------

----------------------------------------------

ASSESSMENT OF DAMAGES

-----------------------------------------------

Background

1.  The plaintiff is from Ngawi, East Java, Indonesia.  She came to Hong Kong in 2013 to work as a domestic helper.  She was 22 years old at that time. The defendant was her employer.

2.  The parties signed the standard form employment contract.  The employment was from 30 May 2013 for a term of two years.  The plaintiff would earn a monthly wage of $3,920 and a food allowance of $875 a month if no meals were provided by the defendant.  The plaintiff was to live at the defendant’s home at a flat in Tseung Kwan O.

3.  From the first day of her employment and for a period of over seven months, namely up to 9 January 2014, the plaintiff suffered from extensive physical abuses at the hands of the defendant.  She was not allowed by the defendant to leave the flat.

4.  Her ordeal was uncovered when she was sent back to Indonesia by the defendant in early January 2014.  Her case received extensive media coverage. Criminal investigation in Hong Kong followed.  In February 2015, the defendant was convicted of a number of offences arising out of her maltreatment of the plaintiff during her employment, including inflicting grievous bodily harm, assault occasioning actual bodily harm, causing grievous bodily harm with intent, common assault, criminal intimidation and offences under the employment legislation.

5.  The defendant was sentenced to a total of six years’ imprisonment and a fine.  (There were other charges brought against the defendant in respect of the employment of two other domestic helpers.  She was convicted of two charges in respect of one of them.)

6.  Shortly after the sentencing, the plaintiff commenced the present civil action against the defendant on 16 March 2015.  The main causes of action against the defendant are assault and battery, and false imprisonment.  The plaintiff claims damages in the total sum of $809,430.03.

History of these proceedings

7.  The generally indorsed writ, together with other documents including the statement of claim and the statement of damages, were served on the defendant at the Lo Wu Correctional Institution by registered post on 17 March 2015.  No notice of intention to defend was lodged by the defendant.  On 28 April 2015, interlocutory judgment was entered against the defendant, with damages to be assessed.

8.  Since then, five checklist review hearings were held in which directions were granted in respect of the assessment of damages.

9.  In the course of these proceedings, the defendant initially acted in person.  She had legal representation for a brief period in 2015.  After that, she acted in person again.  Then in October 2016, she was represented by Messrs Ching & Co.  The representation continued until late October this year, just one month before the assessment hearing.  Since then, the defendant has been acting in person, including at the assessment hearing.

10.  However, notwithstanding the retaining of Ching & Co since October 2016, which was about a month before the third checklist review hearing, and notwithstanding a number of time extensions granted to the defendant in these proceedings:-

(1) The defendant did not file any answer to the plaintiff’s statement of damages, whether original or revised;

(2) She did not make any discovery of documents (save for a last-minute application made at the assessment hearing which I refused);

(3) She did not file any witness statement;

(4) Nor did she nominate her own psychiatric expert to examine the plaintiff within the prescribed time limit.

11.  The upshot is that the defendant is barred from adducing any evidence of her own, whether factual or expert, in the assessment of damages. 

12.  In an interlocutory application brought by the defendant earlier this year, leave was also refused to allow her to cross-examine the plaintiff’s psychiatric expert, Dr Gabriel Hung, on his solo expert report dated 16 May 2016.  Pursuant to an earlier order of the court, the report had been admitted into evidence without calling the doctor to testify at the assessment hearing. 

13.  There was also a late application made just before the fifth checklist review hearing in May this year before the PI master to effectively extend time for the defendant to nominate her own psychiatric expert.  The application was refused.  The defendant’s appeal against that decision was dismissed by me in August 2017.

14.  Accordingly, at the assessment hearing, the defendant, acting in person, was not in any position to put forward a positive case to counter the amount of damages claimed by the plaintiff.

15.  On the other hand, the plaintiff has filed two witness statements in these proceedings.  She also relies on Dr Hung’s report, a number of other medical reports complied by her treating doctors in Indonesia and medical reports compiled in the course of the criminal investigation in Hong Kong.  She was represented by Mr Tony Ko, counsel, at the assessment hearing.  She gave evidence as the only witness at the hearing.

The plaintiff’s account of the defendant’s abuses

16.  Instead of summarising the plaintiff’s evidence in my words, it would perhaps be more effective to present the plaintiff’s factual case of how she was treated during her employment by quoting her own words from her first witness statement below:-

“9. During my employment with the Defendant, I was required to work long hours and was only allowed to sleep and/or rest for about 4 hours a day. I was also always hungry from lack of food. The Defendant only provided me with several slices of bread, a bowl of rice with leftover food and a bottle of drinking water each day. I was physically and mentally drained and sleep deprived at all times.

10. Further, I was only allowed to use the Defendant's toilet twice a day. I either had to hold my bladder or sometimes forced by the Defendant to urinate in a plastic bag. I felt extremely humiliated and shameful. About one month after I began my employment, the Defendant gave me some pills which she claimed to be vitamins. I stopped having menstrual periods after taking these pills and it only resumed after returning to Indonesia.

11. After about 5 weeks into employment, I tried to run away because the Defendant was not paying my wages and I was not provided with enough food. I called the agency in Hong Kong requesting to switch employer but the agency immediately sent me back to the Defendant.

12. Ever since I returned to the Defendant's residence, she kept the front door locked. I was not given the keys and/or access code to the door and was not able to open the door on my own. The door was only opened for me when I was instructed to clean the door or to take the rubbish to the stairwell which was usually in the early morning so that I would not see any of the neighbours. I was trapped and always closely watched by the Defendant and her children.

13. Since then, the Defendant also became violent and abusive towards me. I was beaten by the Defendant almost every day until I was terminated. She punched, hit, scratched and slapped me in the face with her bare hands or with a mop, ruler, hanger and/or with a vacuum cleaner tube. I suffered swellings, bruises and cuts throughout my entire body.

14. One time, I ate some bread belonging to the Defendant and she became very angry after she found out and she punched me in the mouth. My lips bled and my front teeth were cracked and displaced from the Defendant's punches. The Defendant never allowed me to see the doctor let alone the dentist. …

15. Sometime between July and October 2013, the Defendant punched me in the face and fractured my nasal bone causing my nose to bleed. …

16. On another occasion, the Defendant hit me on the head with a hard object after which I lost consciousness and fell to the ground. I woke up with pain in my head but the Defendant made me continue with my cleaning chores. I suffered repeated blows to my head and face causing extensive bruises and swelling in the facial area

including my eyes. …

17. 1 was constantly in fear and never slept well throughout my employment. On several occasions, the Defendant forcibly pulled me down from the top of the ladder after catching me dozing off while cleaning. I fell from the top of the ladder and injured the back side of my body. … In another instance, the Defendant inserted the metal tube of a vacuum cleaner into my mouth and twisted the tube in between my lips and teeth which caused my lips to bleed. I have lost all dignity and respect as a person.

18. One time in winter, the Defendant caught me falling asleep while vacuuming. She dragged me into the bathroom and removed all my clothes. She then sprayed cold water on me and forced me to stand naked and wet facing an electric fan for around 1 to 2 hours in the bathroom. I was cold and shivering. I was also extremely embarrassed, humiliated and distressed.

19. I was required to carry out extensive cleaning around the home. Despite my repeated request for cleaning gloves, the Defendant refused to provide me [with] gloves and thus my skin was severely damaged from constant exposure to cleaning fluid. I have recovered from the extensive dermatitis sores which developed on my hands but there are now visible scars. Sores and blisters also developed on my feet, ankles and lower calves from prolonged kneeling while cleaning. Again, the Defendant did not let me see the doctor but instead gave me some ointment to put on the sores which made the condition worse. The dead skin peeled off my feet and the back of my hands bled from the sores which was painful. The Defendant forced me to wrap my feet in plastic bags to prevent the blood and bodily fluids from contacting with the floor. I was punished if I stained anything in the flat. The condition of my feet worsened to a state that I was unable to work. …

20. I have also sustained scars around my neck, forehead, shoulder, wrists and behind my ears caused by the Defendant's repeated beatings with either a steel hanger or ruler or other objects. …

21. The Defendant confiscated [my] phonebook to ensure that I could not contact any of my friends and family or anyone from the outside for help. I was also told by the Defendant that there were many cameras installed around the flat and that she would be monitoring me even when she was out. I was scared and there was no reasonable means of escape.

22. Further, the Defendant constantly threatened me with the safety and wellbeing of my family in Indonesia. She claimed that her husband was very influential and knew a lot of people in Indonesia and could kill my parents if I told anyone about the Defendant's actions. These threats continued until the very last moment when the Defendant watched me go pass the airport checkpoint. I believed her threats were serious and I was very helpless and frightened during the entire period.

23. By early January 2014, I became physically weak from the constant abuse and did not have the strength to walk or even to go to the toilet. I had to use adult diapers. …

24. I was extremely fearful of the Defendant and did whatever as I was told. Before the Defendant took me to the airport by taxi, she dressed me in 6 layers of shirts, 2 layers of pants and told me to put on diapers. The Defendant put makeup all over my face to hide my injuries. She bandaged my feet and put several pairs of socks over my bandaged feet. I was asked by the Defendant to practice walking and she warned me not to tell anyone about her abusive behaviour otherwise she would use her connections in Indonesia and kill my parent.”

Medical treatments and findings

17.  Shortly after returning to Indonesia, the plaintiff was admitted to Amal Sehat Islamic Hospital Sragen in Solo, Central Java on 11 January 2014 due to multiple injuries on her head and limbs.  She was examined and treated by a number of doctors and various scans were performed during her hospitalisation.  The examinations and scans revealed the following:-

(1) Injuries to the head region – three 3cm lacerations on the forehead, bleeding at the sub-conjunctiva, bruises on upper and lower eyelids, red dots over her face, laceration with a length of 2cm on the nose, scar on the upper lip, two upper front teeth broken, old nose bone fracture, maxilla fracture.

(2) Neurology – brain concussion, cerebral edema and cerebellum edema, gliosis or neural brain damage, ataxia, double vision.

(3) Infection wounds – scars on hands in the form of laceration wounds and scar wounds caused by allergy (contact dermatitis), infection wounds (cellulitis) on the legs probably caused by dermatitis with secondary infection.

(4) Others – two 2cm laceration wounds on left shoulder region, two blister wounds measuring 2cm on the back, one old wound at the rear part of the left ear, and one old wound about 1 to 2cm in diameter on the back just about the hip.

(5) Brain MRI findings – lesions in the left frontal region with hypo-intense lesions on the axial T1, T2 and T2 flair and GRE, ambient cistern narrowed slightly, suspected light cerebral edema with an image of gliosis in the left frontal region.

18.  On 2 February 2014, the plaintiff was discharged.

19.  From February to April 2014, the plaintiff attended Kasih Ibu Hospital and was further examined and treated.

20.  As part of the criminal investigation conducted by the Hong Kong Police, a number of doctors in Hong Kong examined the plaintiff in about April 2014, including a specialist in forensic pathology, a dermatologist, a neurologist, an eye, nose and throat surgeon and an oral and maxillofacial surgeon.  They made a number of findings showing multiple and extensive injuries on the plaintiff’s scalp, nose, eyes, teeth, hands and feet. Multiple scars on the plaintiff’s face and body were observed.  Photographs taken by the police at that time showing the extent of the physical injuries and the scars are disclosed in these proceedings.

21.  The plaintiff attended follow-up consultations in Indonesia throughout 2015.  A Head CT scan was performed in late 2015 which showed no significant abnormality.  Her cracked and displaced front teeth have also been repaired in Indonesia. 

Psychiatric injuries

22.  Physically, the plaintiff says that she has now recovered satisfactorily with little abnormality or residual disability except for dermatitis scars and discolouration of the skin on her feet, ankles and lower calves.  Because of the scars and the discolouration, however, she feels embarrassed to wear clothing revealing her injuries such as skirts, dresses or sandals.  Although she is physically capable of returning to her previous job as a domestic helper, she has now chosen to pursue a university degree in management and economics in Indonesia.

23.  In her witness statement made in June 2016, she described how she has felt since:-

“28. My fears have slightly improved after meeting some supportive friends and volunteers. However, I still feel ashamed and afraid to mingle with my classmates and others. I continue to have headaches and flashbacks of the incidents every so often. The imageries are very real and I sometimes cry. I also have difficulty sleeping and sometimes wake up from nightmares. I easily feel tired throughout the day and have lost pleasure in my interests.

29. I lose concentration easily and sometimes my mind becomes completely blank.  I have also become more forgetful.  I am generally unhappy and I blame myself for coming to Hong Kong.  This would not have happened to me had I not come to Hong Kong in the first place.”

24.  In examination-in-chief, she was asked if her psychiatric symptoms are now the same, better or worse than in 2016 when she made her witness statement, she said she felt better now but if someone asked her about her past, she would still remember and it would never disappear.

25.  The plaintiff was examined by Dr Hung on 4 May 2016 to assess the psychiatric and/or psychological injuries sustained by her arising out of the repeated assault and false imprisonment.  In his report, Dr Hung stated his opinion as follows:-

(1) He found the plaintiff to be reliable.  There was consistency in the symptoms reported by her during the course of the examination and the information previously given to him.  There was also consistency in the symptoms reported by her and her emotions and behaviour observed by him during the examination.  “In particular, her anxiety, fear and distress exhibited by the Plaintiff while recalling the physical assaults were genuine”.

(2) The diagnosis is post-traumatic stress disorder:-

“The Posttraumatic Stress Disorder started in the first one month after returning back to Indonesia. The symptoms have improved with time. Currently the level of severity is assessed to be moderate.” (at paragraph 15.7)

(3) She is also diagnosed with major depressive disorder:-

“The Major Depressive Disorder started during her time in Hong Kong and the symptoms have improved with time. Currently, the level of severity is assessed to be moderate.” (at paragraph 15.9)

(4) “Her psychiatric illnesses arose directly from the Incidents that occurred while she was living and working at the home of the Defendant.” (at paragraph 15.11)

(5) The reasonable period of sick leave would be two years after the incidents of assault and false imprisonment.

(6) Dr Hung recommended the following treatments:-

(a) psychiatric follow-up on a monthly basis for two years, with antidepressant medication treatment to be taken for at least one year (and likely to require two years depending on response); and

(b) psychological treatment by a clinical psychologist (each session for 40 to 50 minutes) on a weekly basis for half a year, and every two weeks afterwards for another one year.

Findings

26.  As noted above, in the course of these proceedings, the defendant has not put in any evidence within the prescribed time limit and she has therefore been debarred from adducing any evidence at the assessment hearing.

27.  At the hearing itself, she also chose not to cross-examine the plaintiff.  She said that she just wanted to get over with this action quickly.

28.  Yet, in her closing speech, the defendant embarked on a barrage of criticisms against the plaintiff, making wide-ranging allegations doubting whether the plaintiff’s injuries are really as serious as she now claims.  She mentioned some messages and photographs posted on social media by the plaintiff in 2015 in which she apparently looked happy and cheerful.  The defendant asked – if the plaintiff has really suffered from psychiatric injuries, why would she look so happy?  The defendant also said that when the plaintiff started to work for her, the plaintiff mentioned that she had some pre-existing medical conditions, eg incontinence.  The plaintiff’s teeth, the defendant claimed, were already chipped and broken when she arrived in Hong Kong.

29.  As I made clear to the defendant at the assessment hearing, all these allegations were factual allegations.  She had earlier forgone her opportunity to put in factual evidence in these proceedings.  These factual claims, which emerged for the very first time at the very last stage of these proceedings, would not form part of her evidence and the court would not take them into account.

30.  As such, the plaintiff’s factual case and the medical reports on which she relies remain unchallenged.

31.  Having considered the evidence as a whole, I accept in full the factual account given by the plaintiff as true, including the abuses and maltreatment which she had gone through and endured while under the defendant’s employment and her physical injuries and psychiatric symptoms. Her account is coherent and consistent.  It is substantiated by the findings of her treating doctors.  The photographs really speak for themselves.  I therefore find that her injuries have been caused by the defendant’s repeated assault and false imprisonment.  I accept Dr Hung’s diagnosis and also consider that the recommended treatment is reasonable and suitable.

32.  With these findings, I now turn to assess quantum under each head of claim.  I note here that the defendant has made no submission at all on any of the claimed amounts.

Pain, suffering and loss of amenities (“PSLA”)

33.  The plaintiff claims $450,000 under this head.

34.  Having considered the cases cited by Mr Ko, in particular, Faridha Sulistyoningsih v Mak Oi Ling Karen DCPI 1575/2005, 4 April 2007 and Chung Lai Ha v Ching Mei Yee DCPI 2755/2012, 20 January 2014, I consider that the claimed amount should be allowed in full and I make an award accordingly.

35.  In fact, given that the injuries inflicted on the plaintiff were intensive, repetitive and continuous over a sustained period of seven months, it may be said that her “pain and suffering” experienced as a result is much more serious than the cases cited.  However, Mr Ko submitted in closing that in the present case, there is no permanent physical disability save for the scars and some discolouration of the skin.  The plaintiff is therefore content with a PSLA award of $450,000. 

Aggravated damages

36.  The plaintiff claims $180,000 under this head – $80,000 in respect of the repeated assault and $100,000 in respect of false imprisonment.

37.  Aggravated damages are compensatory in nature and the award is made to compensate a plaintiff for injury to his feelings, distress and humiliation and the amount should reflect this.  A court should be careful to ensure that there is no double recovery between the “basic” and “aggravated” damages: see Clerk & Lindsell on Torts (21^st ed) at paragraphs 28-133 to 28-134.

38.  Mr Ko has cited a number of cases in which aggravated damages were awarded for assault and/or false imprisonment.  I accept that the following two are comparable cases by the nature of the wrongful act, although the present case is more serious in degree:-

(1) Achacoso Warly Cabaneros v Liu Man Kuen, HCPI 121/2001, 11 June 2004; and

(2) Faridha Sulistyoningsih (see above).

39.  The things which the defendant did to the plaintiff over those seven months were not done merely to inflict physical pain. They were meant to insult, and to subdue the plaintiff to a state of total submission to the defendant’s authority.  The incident of the defendant inserting the metal tube of a vacuum cleaner into the plaintiff’s mouth and the one about the defendant stripping the plaintiff of her clothes, spraying her with cold water and then forcing her to stand naked and wet in front of an electric fan one day in winter (all these just because the plaintiff dozed off when vacuuming) are particularly (and regrettably) revealing.  The defendant’s acts were designed to “teach a lesson” to the plaintiff that she, as the defendant’s domestic helper, was inferior and must do as ordered.

40.  The defendant’s conduct was physically abusive and violent.  Her treatment of the plaintiff was inhumane, degrading and abhorrent.  It was meant to bring about humiliation, distress and loss of human dignity.  The plaintiff had suffered profoundly.  The circumstances of this case clearly warrant the award of aggravated damages.  It should be granted in addition to the “basic” PSLA award made above as compensation for the distress and humiliation which she was forced to go through by the defendant.

41.  The plaintiff’s claim for the amount of $180,000 is a modest and restrained one.  I allow the claim in full as sought.

Pre-trial loss of earnings

42.  The plaintiff claims $86,249.03 under this head on the basis that but for the defendant’s wrongful act, she would have been able to complete the two-year employment contract and earn $115,080 in total, ie ($3,920 + $875) per month x 24 months.  Credit should then be given for the wages paid to her in the sum of $28,830.97 since the criminal proceedings.

43.  Dr Hung opined that a sick leave period of two years after the incidents would be reasonable.

44.  For that reason, this head of claim is valid and I award the claim in full, ie $86,249.03.

Loss of earning capacity

45.  The plaintiff claims $50,000 for loss of earning capacity.

46.  Dr Hung opined that as a result of her psychiatric injuries, there would be mild impairment in her social and occupational functioning.

47.  I am satisfied that this claim is made out and would make an award of $50,000.

Pre-trial expenses

48.  The plaintiff claims $29,269 for medical expenses and $4,000 for travelling expenses.  The former item is supported by receipts.

49.  I make an award of $33,269 under this head.

Future medical expenses

50.  It would be reasonable for the plaintiff to receive the psychiatric and psychological treatments, as recommended by Dr Hung.  I allow a sum of $9,912 for the treatments which are expected to be received in Indonesia.

Interest

51.  In his closing submissions, Mr Ko asked for interest for the PSLA amount at 2% per annum from the date of writ to the date of judgment; and, interest on pre-trial loss of earnings and special damages at half the judgment rate from 9 January 2014 to the date of judgment.  I make an award of interest as sought.

Summary on quantum

52.  The total award of damages, excluding interest, is assessed at $809,430.03, as tabulated below:-

PSLA	$450,000.00
Pre-trial loss of earnings	86,249.03
Loss of earning capacity	50,000.00
Pre-trial expenses	33,269.00
Future medical expenses	9,912.00
Aggravated damages	180,000.00
Total	$809,430.03

Conclusion

53.  Accordingly, there be judgment against the defendant in the sum of $809,430.03, together with interest.

54.  I make an order nisi that defendant pay the plaintiff’s costs of the assessment of damages, to be taxed if not agreed, with certificate for counsel and that the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

55.  I shall direct my clerk to inform the defendant that should she wish to have this decision translated to her in Chinese orally, she should inform the court within 14 days from today.

DCPI 569/2015

[2018] HKDC 549

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 569 OF 2015

-------------------------

-------------------------

--------------------

DECISION

--------------------

1.  I refuse the defendant’s application to rely on further documents which are produced at court this morning for the purpose of the assessment. I have taken into account the following matters.

2.  First, it is for the defendant to justify her application.  First and foremost, the defendant needs to establish relevance of these documents to the issue of quantum.  At today’s hearing, she was only able to make the general observations that these documents would show that the plaintiff was not as seriously injured as she now claims and that the documents would show inconsistencies in the plaintiff’s evidence in these proceedings.

3.  It is however for the defendant to make good her application, by pinpointing the specific documents or specific parts of the documents to establish the above propositions.  Instead, the defendant invites the court to review the documents on her behalf to see or confirm whether that is the case.  That is of course a totally wrong approach.  The court cannot possibly put together a case for any party.  Having had a quick chance to glance through the documents, Mr Tony Ko, counsel for the plaintiff, submits that some of these documents, most notably the medical reports, have already been included in the hearing bundles for this hearing.  Some other documents relate to the issue of liability and are therefore not relevant.

4.  In any event, the defendant has wholly failed to substantiate her application and for that reason above, her application must fail.

5.  Secondly, the defendant claims that she does not know English and it would be most unfair to her if she does not have any assistance from the court or a lawyer to go through the documents for her. She says since she was previously engaged in many sets of legal proceedings, she might not have fully grasped the significance of these documents as she was confused in the process.  One must however assess the defendant’s claim against the procedural background of this case.  Although the defendant acts in person at this hearing, since these proceedings were commenced, she was legally represented for two periods of time by two firms of solicitors.

6.  More specifically, since October 2016, she had engaged Ching & Co to represent her.  The representation continued until late October this year.

7.  During this one year or so, there were a flurry of activities brought about by a number of applications made by the defendant, through Ching & Co – see the decision made by His Honour Judge MK Liu on 24 March 2017 and also my decision made on 30 August 2017.

8.  The documents now sought to be relied on by the defendant are documents arising out of the defendant’s related criminal trial.  They have long been in her possession.  They are voluminous.  The pile of papers now before me are over three inches thick.

9.  They contain police statements and medical reports.  They are clearly material documents which the defendant and her lawyers ought to have considered for the purpose of these proceedings. 

10.  I find it incredible that they would have escaped either the defendant’s or her lawyers’ notice or that they somehow got mislaid or fell through the cracks during any handover of files between the law firms.

11.  To sum up, there is no good or satisfactory explanation why the documents were produced so late.  Also the defendant has totally failed to establish relevance. 

12.  Furthermore, to admit the documents would necessarily mean that the assessment hearing will have to be postponed.

13.  In the circumstances, the application ought to be refused.

( Discussion re costs )

14.  I make an order that the plaintiff do have costs of this application.

15.  The plaintiff’s solicitors having waived their right under Order 62, rule 9C(1)(b) of the Rules of the District Court, the plaintiff’s costs have been summarily assessed at $10,000, payable by the defendant on or before 18 December 2017.

16.  The plaintiff’s own costs be taxed in accordance with the legal Aid Regulations.

DCPI 569/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 569 OF 2015

-------------------------------------

-------------------------------------

------------------

DECISION

------------------

1.  In this case, interlocutory judgment on liability was entered in favour of the plaintiff and against the defendant on 28 April 2015. The only remaining issue is assessment of damages.

2.  The court has given various directions in relation to the assessment of damages. 

3.  On 26 February 2016, Master Rita So gave, inter alia, the following directions to the parties:-

(a) the expert medical evidence be limited to one psychiatric expert for each party, namely Dr Hung Bing Kei Gabriel (“Dr Hung”) for the plaintiff and one to be nominated for the defendant;

(b) the defendant shall inform the plaintiff’s solicitors by way of letter her choice of psychiatric expert within 42 days, and the plaintiff’s solicitors shall report to the PI Master the date of the intended medical examination within the next 14 days; and

(c) in the event that the defendant fails to nominate her psychiatric expert within the prescribed time, it will be deemed that the defendant has elected not to adduce psychiatric expert medical evidence at the assessment of damages, and the plaintiff do have leave to proceed to arrange an examination with the sole psychiatric expert Dr Hung on or before 5 June 2016.

4.  The defendant failed to nominate her psychiatric expert within the prescribed time.

5.  On 25 April 2016, the plaintiff’s solicitors sent a letter of instructions (“the Instructions Letter”) and provided the documents in enclosure 1 therewith (“Enclosure 1”) to Dr Hung.  Dr Hung examined the plaintiff on 4 May 2016 and prepared a psychiatric expert report on 16 May 2016 (“Dr Hung’s Report”). 

6.  In the checklist review hearing before Master J Chow (“the master”) on 10 February 2017 (“the checklist review hearing”), the plaintiff sought a direction that Dr Hung’s Report be adduced as evidence in the hearing for the assessment of damages without calling Dr Hung.  The defendant objected and applied for an order that Dr Hung shall attend the hearing for assessment of damages and be cross-examined by the defendant.  After hearing the parties’ submissions, the master refused to accede to the defendant’s request and granted the direction sought by the plaintiff (“the order”).

7.  By a notice of appeal dated 22 February 2017, the defendant lodged an appeal against the order (“the appeal”).  It is clearly stated on the notice of appeal that the appeal will be heard on 24 March 2017.

8.  On 16 March 2017, just 8 days before the hearing of the appeal, the defendant’s solicitors wrote to the master asking for written reasons for the order.  On 20 March 2017, the master directed the defendant’s solicitors to apply for transcript of the checklist review hearing (“the transcript”).

9.  On 21 March 2017, the defendant’s solicitors wrote to this court, enclosing a consent summons signed by the parties.  By the consent summons, the parties jointly seek an adjournment of the hearing of the appeal to a date to be re-fixed (“the adjournment application”).  The reason given in support of the adjournment application is that the transcript is not yet ready. 

The adjournment application

10.  Today, the parties seek leave to withdraw the adjournment application.  I grant the leave sought by the parties.  The parties agreed that costs of the consent summons be in the cause of the appeal.

The appeal

11.  For the record, I have heard the audio recording of the checklist review hearing.

12.  In the checklist review hearing, Mr Ching for the defendant submitted that although the defendant had not engaged a psychiatric expert, the defendant should still be allowed to cross-examine Dr Hung in the hearing for the assessment of damages.  The defendant might have input from an expert to assist her in conducting the cross-examination.  The defendant had the entitlement to cross-examine Dr Hung, and she should not be deprived of this entitlement.

13.  The master asked Mr Ching whether he had prepared a list setting out the issues in Dr Hung’s Report which were being disputed by the defendant (“the list of issues”), and whether the defendant was willing to provide an undertaking as to costs (“the undertaking as to costs”) if she insisted that Dr Hung should come to court to be cross-examined.  Mr Ching could not provide both the list of issues and the undertaking as to costs.  The master further told Mr Ching that if the defendant was prepared to engage a psychiatric expert, the defendant should seek leave to adduce a report made by her psychiatric expert. The master said that the court would not allow the defendant to have an expert behind the scene to propose cross-examination questions.

14.  From these exchanges, the reasons for the order are apparent.  The master considered that it would not be appropriate for the defendant to request for cross-examination of Dr Hung in the absence of the list of issues and the undertaking as to costs.  Further, the master considered that it would not be right for the defendant to have an expert behind the scene.

15.  This is a de novo hearing, see Hong Kong Civil Procedure 2017, Vol 1, §58/1/2.  I consider the defendant’s request afresh, as if the matter came before the court for the first time.

16.  The list of issues requested by the master is important for the purpose of conducting the active case management required by the Rules of District Court, Order 1A, rule 4. The court would only be able to consider whether cross-examination is really necessary after seeing the list of issues.  Further, if cross-examination is necessary, the court would also need to know what issues are in dispute for the purpose of allocating reasonable time for the cross-examination in the assessment of damages.  All these cannot be done in the absence of the list of issues. 

17.  For the hearing today, Mr Ching in his written submissions says:-

“6. As clearly stated in the Report of Dr. Hung that information about the Plaintiff had been obtained from the Plaintiff herself at the time of the examination, and he would rely upon the information in order to base his opinions as stated in the Report.

7. Further Dr. Hung was fully aware that the credibility/reliability of the Plaintiff was a live issue (see paragraph 15.3 of the Report), and he said that “the core of reliability is consistency”.

8. The doctor, then went on to say that “I find the Plaintiff to be reliable. There was consistency in the symptoms reported by her during the course of the examination, and the information available in the documents and records provided by the instructing solicitors”.

9. What was said by the Plaintiff during the examination was clearly recorded/reported in details under paragraphs 10-14 of the Report. What was provided by the Instructing Solicitors were also recorded in the Letter of Instructions dated 25th April 2016 and the enclosures therewith.

10. However, it was not clear as to what exactly the expert meant by “information available in the documents and records provided”, whether he referred to the factual information given by the Plaintiff or the medical information/opinions found, in the documents and records provided. The Defendant is entitled to ask the expert for clarification by way of cross-examination.

11. Further, if it was the factual information, then, if the Plaintiff gave different accounts of the facts in different documents or accounts, the Defendant is entitled to ask whether the expert knew about the difference and whether or how it would affect his assessment of the reliability of the Plaintiff and hence, his opinions as stated in the Report. In this regard, the Court must be aware that the Plaintiff gave lengthy evidence in court at the trial in the related criminal case against the Defendant.

12. If it was the medical information and opinion, then it is worth noting that there was no psychiatric report present among those documents provided by the Instructing Solicitors under their Letter of Instructions. Also, the expert did say in the Report that the Plaintiff did not have any pre-existing psychiatric illness. That means that the Plaintiff only developed psychiatric conditions after the incident. The Plaintiff is then entitled to ask without any previous psychiatric report to compare, how the expert assessed or detected consistency in medical information/opinion.

13. The above was only some examples of ways to test the evidence of the expert and hence, the court to decide the weight ought to be given to the opinions as stated in the Report.” (Emphasis in original)

18.  Mr Ching in his paragraph 10 submits that the meaning of “information available in the documents and records provided” in Dr Hung’s report is unclear.  With respect, this cannot be right.  What has been said by Dr Hung in §15.4 of his report is “the information available in the documents and records provided by the instructing solicitors”.  That clearly means the information in the Instructions Letter and in the documents in Enclosure 1.  The basis of Dr Hung’s opinion in §15.4 of his report is clear and unambiguous.

19.  That being the case, with respect to Mr Ching, the point made in his paragraph 11 is a non-point.

20.  As to the point made in his paragraph 12, taking it at its highest, at most this is a submission point, which may be made by the defendant in the hearing for assessment of damages without any cross-examination.  The materials provided to Dr Hung have been clearly set out in the Instructions Letter.  On the basis of those materials, whether the opinion expressed by Dr Hung in his report is reasonable and reliable is open for comments, and the defendant would have the opportunity to make submissions on this in the hearing for assessment of damages.

21.  Having carefully considered both the written and the oral submissions made by Mr Ching, I am not convinced that the defendant has demonstrated any issue in Dr Hung’s Report which ought to be investigated by cross-examination.

22.  Further, I would not allow the defendant to just have an expert behind the scene.  If the defendant is able to find a psychiatric expert, the defendant should seek leave to put in an expert report made by her expert.  The parties are obliged to provide the best assistance to the court.  This would include providing to the court a joint report or the respective reports made by their experts.  This would also include having without prejudice discussion between their experts to find out the issues on which the experts are able to reach an agreement and the issues on which the experts are unable to agree with each other.  The experts may then in the joint report or their respective reports inform the court the agreed issues and the non-agreed issues, and the reasons for the non-agreement.  It would not be right to just have an expert behind the scene for the purpose of cross-examining the other side’s expert.  The court would not be ably assisted by this kind of practice.

23.  For the reasons set out above, in my judgement, the defendant has failed to show a case justifying leave to cross-examine the other side’s expert.

24.  The master mentioned the undertaking as to costs in the checklist review hearing.  Obviously, the cross-examination proposed by the defendant would prolong the length of the hearing for the assessment of damages and would increase the plaintiff’s costs.  The master said the costs involved would be about HK$20,000 or HK$30,000.  It seems that the master has required the defendant to demonstrate that she would be financially able to pay the costs occasioned by the proposed cross-examination.  The defendant’s financial ability is a factor having been taken into account in the master’s consideration. 

25.  I respectfully differ from the master on this point.  As a matter of law, no security for costs should be required from a defendant who is exercising his right to defend himself against a claim.  See Hong Kong Civil Procedure 2017, Vol 1, §23/3/16.  In my judgment, the key question is whether the defendant is able to show a case justifying cross-examination.  If she cannot do so, that is the end of the matter.  If she has established such a case, she should be given leave to cross-examine.  It would not be right to require the defendant to show her financial ability in order to get leave to cross-examine, for this would tantamount to requiring a defendant to provide security for costs in civil litigation.

26.  Notwithstanding the difference between the master and me on this point, as the defendant has failed to show a case justifying cross-examination for the reasons set out above, the defendant’s proposed cross-examination must be refused.  Accordingly, this appeal has to be dismissed.

27.  I dismiss the appeal.  Costs of the appeal are to be paid by the defendant to the plaintiff.  Having heard the parties, I summarily assessed that the total of such costs (including the costs of the consent summons) be HK$18,000.  The plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.

28.  Mr Ching asks me to allow the defendant to pay such costs within 3 months.  Mr Lam for the plaintiff submits that at most 1 month would be reasonable time.  I order that the defendant to pay such costs to the plaintiff within 1 month.  For the avoidance of doubt, this only means that there would be no enforcement action by the plaintiff before the expiration of the 1-month period.  Interest on those costs would still accrue from the date of this decision until payment at the judgment rate.  This is to give a clear message to the defendant that she has to pay the sum sooner rather than later.

29.  I thank the parties for the assistance provided to this court.