A v. 林守光

DCEO 11/2018

[2019] HKDC 320

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO 11 OF 2018

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DECISION

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1.  This is the case management conference for this equal opportunities action. The respondent applied for specific discovery.

2.  According to Mr Sun for the respondent, the respondent had written to the claimant to seek the documents requested by them.  By a reply dated 5 December 2018, the claimant had replied that the documents requested were not in their possession, custody or power.

3.  Today, Mr Sun renewed his application orally before this court, without a supporting affidavit.  He claimed that it is the usual practice for applicants for specific discovery to make such an application without an affidavit in a three-minute hearing and, if the court is not minded to make the order, will then take out the proper application with a grounding affidavit.

4.  Applications for specific discovery are made under Order 24, rule 7.  Order 24, rule 7(3) states that:-

“An application for an order under this rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this rule has, or at some time had in his possession, custody or power the document, or class of documents, specified or described in the application and that it relates to one or more of the matters in question in the cause or matter.”

5.  In paragraph 24/7/2 of the White Book, the learned editors reiterated what was said in the case of Jade’s Realm Limited v Director of Lands, HCA 1509/2012, including the following principles:-

“There is no jurisdiction to make an order for specific discovery under Order 24, rule 7 unless there is sufficient evidence or prima facie case that: (a) the documents or classes of documents exist which the other party has not disclosed; (b) the documents relate to a matter in issue in the action; and (c) the documents are in the possession, custody or power of the other party…”

6.  In the present case, without a supporting affidavit, and in the face of the claimant’s reply dated 5 December 2018, there is, in my view, no prima facie evidence that the documents requested are in the possession, custody or power of the claimant.

7.  The application is therefore dismissed.