Case Detail

HCPI 497/2020

[2024] HKCFI 800

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 497 OF 2020

________________________

BETWEEN
	Cheung Sau Chu Rosanna	Plaintiff
and
	魯珉軒	1st Defendant
	劉嘉興	2nd Defendant
	羅子峰	3rd Defendant
	SECRETARY FOR JUSTICE for and on behalf of THE COMMISSIONER OF POLICE	4th Defendant
	SECRETARY FOR JUSTICE for and on behalf of THE COMMISSIONER, AUXILIARY MEDICAL SERVICE	5th Defendant

________________________

Before:

Deputy High Court Judge Leung in Chambers (By Paper Disposal)

Date of Hearing:	12 December 2023
Date of the Plaintiff’s Written Submissions:	19 December 2023
Date of the 4^th and the 5^th Defendants’ Written Submissions:	21 December 2023
Date of the Plaintiff’s Written Submissions in Reply:	2 January 2024
Date of Decision:	22 March 2024

____________________

DECISION

____________________

1. On 13 October 2023, this court handed down decision in respect of the plaintiff’s appeal against the master’s decision (“the Decision”). She seeks leave to appeal against the Decision. At the hearing on 12 December 2023, and pursuant to the plaintiff’s request, this court adjourned the application to be disposed of on paper, and for that purpose gave direction for the lodging of written submissions.

2. The same definitions and abbreviations in the Decision are adopted for the present purpose.

3. The background and contentions of the parties discussed in the Decision will not be repeated here. Suffice to recapitulate that the appeal against the 1/6/2023 Order, albeit out of time, was argued and considered mainly on its merits. There was no proper application before the master for relief against sanction for non-compliance with the unless order dated 20 April 2023 in respect of the filing of her reply. Even assuming that her representation at the hearing before the master on 1 June 2023 were to be entertained as an application for relief against sanction, this court found that there would have been no justification for granting the relief. This would have been the same conclusion of this court, had such an application been before this court. Further, the plaintiff’s application for production of documents was misconceived. Insofar as the plaintiff was seeking recusal of the master from the case, this court found that she suffered from the lack of formal application before the master and therefore no order which could be appealed and heard by this court. Even assuming this court were to entertain such an application of the plaintiff in the first instance, such application would have been devoid of merit.

The intended appeal

4. By her summons filed on 26 October 2023 (“the Summons”), the plaintiff applies for:

(1)  the Decision be “set aside”;
(2)  the order of this court made upon the Decision be stayed;
(3)  “review hearing” of the appeal under O58, RHC;
(4)  leave to appeal to the court of appeal;
(5)  leave to file statement of objections to the statement of costs of the 4^th and 5^th defendants.

5. As pointed out in the written direction dated 7 December 2023, (1) and (3) above are misconceived as there is no such procedure in respect of the Decision or the Order. The plaintiff may seek leave to appeal against the Decision/Order, which is indeed (4) above. Further, (5) above cannot be revisited in view of §42 of the Decision.

6. As mentioned, the plaintiff sought adjournment of the hearing of the Summons. However, the hearing on 12 December 2023 was maintained, and after hearing the parties, this court adjourned the substantive argument and determination pending written submissions.

Leave to appeal

7. Section 14AA(1) of the High Court Ordinance, Cap 4, provides that leave to appeal shall not be granted unless the court is satisfied 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.

8. The principles are trite. A reasonable prospect of success must be more than ‘arguable’ or ‘not fanciful’ though without having to be ‘probable’: see SMSE v KL [2009] 4 HKLRD 125; Wynn Resorts (Macau) SA v Mong Henry [2009] 5 HKC 515. In respect of case management decisions, the appellants faces a very high hurdle and has to show that the court below had gone clearly wrong: see for instance Mimi Kar Kee Wong Hung v Severn Villa Ltd [2012] 1 HKLRD 887.

9. In her submissions, the plaintiff complained that the hearing of her present application proceeded without opportunity for her to adduce transcript of the hearing in August before this court. This is not material as what happened during that hearing is a matter of actual knowledge of this court and the parties.

10. None of the plaintiff’s written submissions suffices to discredit the consideration by this court of the propriety of the case management directions given by the master under the 1/6/2023 Order (summarised in §4 of the Decision), when one takes in account the procedural history as explained in the Decision. Nor is there fair basis for arguing that relief against sanction under the unless order dated 20 April 2023 should have been granted, even assuming that such an application were before the master on 1 June 2023 or this court on appeal from the master. There is hardly reasonable prospect of success in the intended appeal against.

11. In her submissions, the plaintiff suggests that she was not seeking recusal of the master from the case but “only to seek to change the master”. The attempt to differentiate the descriptions is pure semantics. Again, the plaintiff complains about lack of opportunity to adduce the transcript(s) of the proceedings before the master(s) to make good her point. However, her written submissions do not suffice to impeach the reasoning in this court’s discussion in respect of the recusal issue, which this court considered notwithstanding (as explained in the Decision) the lack of proper basis for asking this court to do so. Importantly, there is no reasonable prospect of satisfying the appellate court that this court was wrong in applying the principles in respect of recusal of tribunal as explained in the Decision in considering the master’s exercise of case management discretion based on what were the objective procedural history and circumstances actually before her.

12. For completeness, this court will address the plaintiff’s attempt to challenge the summary assessment of costs under the Decision as if it is an application for leave to appeal against that.

13. The statement of costs provided by government counsel for the 4^th and 5^th defendants for the hearing in August 2023 was simple and straightforward. They only charged for 5 items of professional work. There was no question of inability of the plaintiff to read the statement due to language barrier. This court actually explained the same item by item in Chinese to the plaintiff. After that, she did make representation regarding the specific items. This court did not see the need, as there was neither rule nor norm requiring the court, to adjourn the summary assessment for written comments by the paying party (let alone for 14 days as the plaintiff now suggests) in circumstances such as these. Making appropriate deduction from the billed amount but factoring in the increase necessitated by the actual hearing time (as pointed out during the hearing), this court came to the assessed sum of HK$25,000 (which was still less than the billed amount). The complaint of the plaintiff about this court’s exercise of discretion as to costs is without merit.

14. The application for leave to appeal therefore is refused.

Stay

15. An appeal does not operate to stay the order being challenged. This is the case of an appeal against the master’s decision to the judge: see O58, r1(4), RHC as well as the case of an appeal from the judge to the Court of Appeal: see O59, r13(1), RHC. It follows from the refusal of leave to appeal that there exists no basis for the consideration of stay of the order of this court made upon the Decision.

Order

16. The Summons is dismissed.

17. I make a nisi order that the plaintiff shall pay the costs of the 4^th and the 5^th defendants occasioned by the Summons. In the absence of application in 14 days to vary, the nisi order will become absolute without further order, upon which the 4^th and the 5^th defendants do lodge and serve their statement of costs within 7 days, and the plaintiff may lodge her written comment on the statement (limited to 1 page) within 7 days thereafter. Costs will be summarily assessed on paper afterwards.

18. At the end of the hearing on 12 December 2023, this court awarded the 4^th and the 5^th defendants their costs occasioned by the plaintiff’s application for adjournment, which was summarily assessed at HK$6,000 on the basis of the then handwritten statement of costs of government counsel. This court made it clear that the costs of and occasioned by preparation in answering the Summons were then not included, as those are not wasted and should now fall to be assessed pursuant to the above costs order.

19. The 2^nd 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.

	(Simon Leung)
	Deputy High Court Judge

The plaintiff appeared in person

The 1^st defendant was not represented and was absent

The 2^nd and 3^rd defendants appeared in person

Mr Louie Chan, Government Counsel, of the Department of Justice, for the 4^th and 5^th defendants

Further Written submissions by the plaintiff in person

Further Written submissions by Mr Louie Chan, Government Counsel, of the Department of Justice, for the 4^th and 5^th defendants

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

________________________

BETWEEN

	CHEUNG SAU CHU ROSANNA	Plaintiff
and
	魯珉軒	1st Defendant
	劉嘉興	2nd Defendant
	羅子峰	3rd Defendant
	SECRETARY FOR JUSTICE FOR AND ON BEHALF OF THE COMMISSIONER OF POLICE	4TH DEFENDANT
	SECRETARY FOR JUSTICE for and on behalf of THE COMMISSIONER, AUXILIARY MEDICAL SERVICE	5th Defendant

________________________

Before:

Deputy High Court Judge Leung in Chambers

Date of Hearing:	10 August 2023
Date of Decision:	13 October 2023

________________________

DECISION

________________________

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.

	(Simon Leung)
	Deputy High Court Judge

The plaintiff appeared in person

The 1^st and 3^rd defendants appeared in person

The 2^nd defendant was not represented and absent

Mr Louie Chan, Government Counsel, of the Department of Justice, for the 4^th and 5^th defendants

HCPI 497/2020

[2021] HKCFI 3356

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 497 OF 2020

_________________

BETWEEN
	CHEUNG SAU CHU ROSANNA	Plaintiff
and
	魯珉軒	1^st Defendant
	劉嘉興	2^nd Defendant
	羅子峰	3^rd Defendant
	SECRETARY FOR JUSTICE for and on behalf of THE COMMISSIONER OF POLICE	4^th Defendant
	SECRETARY FOR JUSTICE for and on behalf of THE COMMISSIONER, AUXILIARY MEDICAL SERVICE	5^th Defendant

_________________

Before: Deputy High Court Judge Winnie Tsui in Chambers

Date of Hearing: 4 November 2021

Date of Decision: 4 November 2021

_______________

DECISION

_______________

Introduction

1. By summons dated 31 May 2021, the plaintiff sought an extension of time to file and serve her statement of claim and statement of damages “by 6 months to 1^st December 2021”.

2. On 2 September 2021, Master Kot ordered that unless the plaintiff do by 4pm on 1 December 2021 file and serve her statement of claim, statement of damages and the medical reports as required under Practice Direction 18.1, her action be dismissed with no order as to costs.

3. Before me this morning is the plaintiff’s appeal against the master’s order. She asks for the order to be set aside and seeks an order that time be extended for her to file and serve the documents on or before 29 January 2022 and not on an “unless” basis.

4. The 1^st, 2^nd and 3^rd defendants are not present today. The plaintiff has confirmed to the court, with supporting documents, that the notice of appeal was sent to them by ordinary post on 14 September 2021. I am satisfied that the three defendants ought to have notice of today’s hearing. The court has therefore proceeded in their absence.

Procedural history

5. The plaintiff commenced this action in the District Court in DCPI 187/2020. The writ was issued on 20 January 2020.

6. By order dated 2 November 2020, the action was transferred to the Court of First Instance.

7. According to the plaintiff’s affirmation evidence, the writ was served on the 1^st, 2^nd and 3^rd defendants by registered post in January 2021. The post sent to the 1^st defendant was however later returned in February 2021. The writ was subsequently renewed upon its expiry. It was then served on the 1^st defendant by registered post in July 2021.

8. The writ sent to the 2^nd and 3^rd defendants was not returned.

9. The 1^st defendant has not lodged an acknowledgment of service to date. However, he was present in person at the checklist review hearing before Master Roy Yu on 21 June 2021 and the hearing before Master Kot on 2 September 2021.

10. It would appear from the court records that in late January 2021, the 2^nd and 3^rd defendants, acting in person, lodged their acknowledgments of service with the District Court. As the action had by then been transferred to the Court of First Instance, the acknowledgments were expunged by the Registry pursuant to a direction of a District Court master. It would also appear that the 2^nd and 3^rd defendants might have sent their acknowledgments of service to the District Court as the writ might have still referred to the District Court action number.

11. The writ was served on the Department of Justice, who acts for the 4^th and 5^th defendants, in January 2021. They lodged their acknowledgment of service with the court on 29 January 2021.

12. Pursuant to Order 18, rule 1, the plaintiff should serve her statement of claim on the 4^th and 5^th defendants by mid-February 2021. The plaintiff did not comply with the rule.

13. By summons filed on 16 February 2021, the plaintiff sought an extension of time of 6 months. The summons was served on all the five defendants.

14. By order dated 1 March 2021, Master Yu extended the time for the plaintiff to file and serve the statement of claim, statement of damages and the medical reports to 1 June 2021. At that hearing, the 1^st, 2^nd and 3^rd defendants were absent.

15. That would be the first time extension granted to the plaintiff.

16. Then, on 31 May 2021, the plaintiff took out a summons to further extend the time for another 6 months. That is the summons to which the present appeal relates. The summons was served on all the five defendants. The return date was 21 June 2021, which was the scheduled date for the checklist review hearing.

17. At that hearing, Master Yu adjourned the time extension summons to 2 September 2021. All the five defendants were present. It would appear that the adjournment was ordered because of pending legal aid applications made by the 2^nd and 3^rd defendants and also because at that time, the 1^st defendant was not yet properly served with the writ.

18. Lastly, at the adjourned hearing on 2 September 2021, Master Kot made the unless order, which is the subject-matter of the present appeal.

19. I was informed by the parties this morning that at that hearing, Master Kot told the parties that a memorandum of notification of an application for legal aid with respect to the 1^st defendant was filed with the court just before that hearing.

20. Notwithstanding that, master proceeded with hearing submissions from the parties and making the unless order in the end. In the circumstances, while there was no express order appearing in the sealed order lifting the legal aid stay, in substance, master effectively lifted the stay for the hearing to continue.

Discussion

21. It is plain from the procedural history recounted above that the statement of claim, together with the statement of damages and the medical reports which are required to be served together with the statement of claim under Order 18, rule 12(1A), have long been overdue at the time the unless order was made as far as the 4^th and 5^th defendants are concerned. The plaintiff was then already late by almost seven months.

22. As regards the 1^st, 2^nd and 3^rd defendants, the prima facie position is that time for serving the statement of claim does not start to run until after the acknowledgment of service is lodged unless the court directs to the contrary: see Order 18, rule 1.

23. There has to date been no (or no effective) acknowledgment of service lodged by the three defendants.

24. However, in the present case, the plaintiff chose to serve her two time extension summonses on all the defendants.

25. Effectively, by her summons dated 31 May 2021, the plaintiff was seeking a time limit of 1 December 2021 to file and serve the documents on all the five defendants.

26. In the circumstances, given the plaintiff’s own application, it was open to the master to treat the statement of claim as due as against all the defendants under the rules and extend time accordingly to 1 December 2021.

27. According to the general indorsement on the writ, the plaintiff is claiming damages against the defendants out of an incident which took place on 27 January 2017.

28. When the unless order was made in September this year, it was about 4 years and 7 months after the event. Yet the plaintiff was still not able to inform the defendants her case against them save for what is stated in the general indorsement.

29. Under the rules, the statement of claim, the statement of damages and the medical reports were then overdue in terms of months. In the circumstances, where the plaintiff sought an extension of time, I consider that it was eminently proper for the extension to be granted on an “unless” basis. It must be noted that the new deadline granted was in fact the very same one sought in the plaintiff’s own summons.

30. I am of the view that the making of the unless order is a proper exercise of the court’s case management power and it facilitates the underlying objectives set out in Order 1A, in particular rule 1(b) and (d), namely that the case should be dealt with as expeditiously as is reasonably practicable and to ensure fairness between the parties.

31. This morning, the plaintiff explains that she has been having health issues and she has had difficulties in obtaining the medical reports from Ruttonjee Hospital and Queen Mary Hospital. All she has now obtained are a bundle of medical treatment records. Furthermore, in her consultation with the doctor on 28 October 2021, she was told that it would usually take about three months for the hospital to prepare her medical reports. And that is why she now asks for an extension of time until 29 January 2022. She has been trying her best to obtain the medical reports to comply with the court deadline but the hospitals have not been able to deal with her request in a timely manner. Lastly, she is due to undergo a surgery and some medical tests in late November and early December.

32. Mr Louie Chan, who appears for the 4^th and 5^th defendants, submits that the preparation of the statement of claim and the statement of damages does not depend on the medical reports. However, he acknowledges that the compilation of the medical reports may be beyond the control of the plaintiff.

33. Hence, the 4^th and 5^th defendants’ position in this appeal is that the master’s order in relation to the statement of claim and statement of damages should stand but they are prepared to agree to a time extension for the medical reports until 1 February 2022, and not on an “unless” basis.

34. As I have tried to explain to the plaintiff at the hearing, when making case management decisions, the court does not only have in mind her personal circumstances as a factor, it would also take into account the position of all the five defendants. The action was commenced back in January 2020. Almost two years later, the defendants are still not being told the plaintiff’s case, save for a general indorsement. The unless order should stay. The defendants are entitled to a final deadline by which the plaintiff should present a properly formulated claim, both in terms of the alleged incident and the injuries, to them.

35. On the other hand, given the agreement of the 4^th and 5^th defendants, I am prepared to vary the master’s order as suggested by Mr Chan.

Conclusion

36. The appeal is allowed to the limited extent that the time for the filing and serving of the medical reports be extended to 1 February 2022 and the extension of time is not on an unless basis. Subject to that, the rest of the master’s order do stand.

[Submissions on costs]

37. The plaintiff and the 4^th and 5^th defendants have no application for costs for this appeal. I make no order on costs accordingly.

( Winnie Tsui )
Deputy High Court Judge

The plaintiff appeared in person

The 1^st, 2^nd and 3^rd defendants were not represented and did not appear

Mr Louie Chan, Government Counsel of the Department of Justice, for the 4^th and 5^th defendants

CHEUNG SAU CHU ROSANNA v. 魯珉軒 AND OTHERS

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