LEUNG TAK HING v. WU ANTHONY

HCPI 1327/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1327 OF 2016

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D E C I S I O N

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1.  This is an application by the defendant for leave to appeal to the Court of Appeal from my decision made on 19 September 2017 allowing the appeal from the decision of Master Harold Leong, made on 25 July 2017, that the plaintiff should instruct a local clinical oncology expert rather an expert from overseas and, further, granting leave to the plaintiff to appoint an overseas expert radiologist.

2.  On 6 October 2017, I directed the parties to exchange written submissions and I vacated the oral hearing for leave to appeal that had been fixed on 17 October 2017. Having perused the grounds of appeal and those submissions, I have come to the conclusion that I ought to dismiss the application for leave to appeal on the ground that the defendant has failed to establish reasonable prospects of successfully appealing against my decision.

3.  The critical factor in this case is the need for a speedy trial. The plaintiff is at the 4^th stage of lung cancer and has a shortened life expectancy.  To compel him to obtain an opinion from a local oncologist to replace Professor Nutting would have resulted in delay.  As I stated in my reasons for my decision on 19 September 2017, this was a special case which warranted a speedy trial and I allowed the appeal from the learned Master for this special reason.  It would not be just for the court to direct the plaintiff to substitute Professor Nutting with a local oncologist as his expert oncologist on liability because that was likely to cause further delay to the proceedings.

4.  Indeed, it was with much difficulty that I was able to secure 5 days from the diary of Deputy High Court Judge Raymond Leung SC[1] to hear the trial from 14 to 18 May 2018. It was impossible to fix a speedy trial and also accommodate counsels’ diaries. I decided, on 27 September 2017, that the need for a speedy trial was paramount and overriding and I directed that trial would take place before Deputy High Court Judge Raymond Leung SC from 14 to 18 May 2018, notwithstanding that those dates were not convenient to counsel. 

5.  The grounds of appeal that have been filed in respect of my alleged failure to follow the English guidelines on instructing overseas experts have missed the point. I reached my decision on 19 September 2017 for the special reason set out in §3 above and I specifically stated that I did not want this decision to be a precedent and that there were many factors that needed to be considered and debated before the court could set out established principles in this area. I identified in my decision some of those factors which would need to be debated at an appropriate time in a future case.

6.  Once I permitted the plaintiff to rely on Professor Nutting, it followed that I ought to permit him to instruct an overseas radiologist to enable ease of communication between him and Professor Nutting, just as the defendant’s expert oncologist in Hong Kong would enjoy ease of communication with the defendant’s expert radiologist in Hong Kong.  I do not see any merit in the grounds of appeal filed in respect of my decision to permit the plaintiff to instruct an overseas radiologist.

7.  Ultimately, these are case management decisions for the Judge in charge of the Personal Injury List to make.

HCPI 1327/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1327 OF 2016

__________________________

__________________________

____________________

D E C I S I O N

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1.  I would allow the appeal from the order of Master Harold Leong dated 25 July 2017. I do so for very special reasons. This is a special case which warrants a speedy trial because of the plaintiff’s substantially reduced life expectancy. It would not be just for the court to direct the plaintiff to substitute Professor Nutting with a local oncologist as his expert oncologist on liability because that is likely to cause further delay to the proceedings.

2.  I do not want this decision to be a precedent.  Obviously, there are many factors that need to be considered and debated before the court can set out established principles in this area.  The impact of the CJR on the parties’ choice of experts has been seen in some cases.  I recall an early decision of mine in which I directed the plaintiff to change his expert for the reason that his chosen expert was one which no other medical professional in Hong Kong would like to deal with. Of course, that was an extreme case.

3.  Clearly, one needs proportionality.  Is it proportional to incur additional costs and additional delay that may come with engaging overseas experts?  We have video link facilities, but video link has its limitations as opposed to the judge seeing the witness live in the witness box. Another factor is the knowledge of the overseas expert of local medical standards, and the knowledge of the overseas expert of local characteristics and any peculiar features of our local population.  Different considerations may apply when one considers engaging an overseas expert on liability as opposed to an overseas expert on quantum.

4.  There was a point taken that an overseas expert does not have the right to practice medicine in Hong Kong, but I think that point was laid to rest as a result of the researches of Mr Sakhrani who identified, in Gazette GN 5231 dated 17 July 2015, Promulgation Number 10, which related to limited registration under the Medical Registration Ordinance, Cap 161, and, in effect, enables overseas experts to “practice medicine” in Hong Kong.  I set out Promulgation No. 10 in full as follows:

“G.N. 5231 MEDICAL COUNCIL OF HONG KONG

LIMITED REGISTRATION UNDER

MEDICAL REGISTRATION ORDINANCE (Chapter 161)

PROMULGATION NO. 10

The Medical Council of Hong Kong has determined that, until such time as the Council may determine otherwise, limited registration under section 14A of the Medical Registration Ordinance, Chapter 161, Laws of Hong Kong is appropriate in respect of the following employment:-

‘Employment by a firm of solicitors registered by the Law Society of Hong Kong to carry out a medical examination of a person in Hong Kong for the sole purpose of preparing a medical expert report on that person for use in a pending court proceedings in Hong Kong.’

The practice of a person registered with limited registration under this promulgation shall be subject to the restrictions and conditions as determined by the Medical Council of Hong Kong and stipulated in the letter of approval.

An applicant should be a medical practitioner registered with an approved medical authority outside Hong Kong.

Applications for limited registration under this promulgation should be made to the Registrar of Medical Practitioners in accordance with the guidelines published by the Medical Council of Hong Kong.

17 July 2015

Maggie CHOW Secretary, Medical Council of Hong Kong”

So that lays this point to rest.

5.  Clearly, overseas experts are extremely welcome if they carry with them specialised knowledge which is not available amongst our local experts.

6.  As I said, I do not want this decision to be a precedent, but these are the factors that would need to be debated at an appropriate time in a future case as well as the one point that I should mention, namely, the right of a party to engage an expert of his own choice; and also whether or not the costs of overseas experts ought to be allowed on a party and party taxation.  These are also matters to be debated in future.

7.  As regards costs, the point taken in relation to the appeal was a very minor part of the hearing last time, which was largely taken up with the case management of this complex case which requires to be brought to court quickly.  In the circumstances, I am minded to make an order that the costs of the appeal be costs in the cause.  In the same vein, I set aside the order of Master Harold Leong and order that the costs of the hearing below be costs in the cause.