A v. 林守光

DCEO 11/2018

[2019] HKDC 701

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.  On 18 February 2019, I dismissed the respondent’s application, made orally at the hearing, for specific discovery. The reasons for my decision have since been transcribed for parties’ reference (“the Decision”).

2.  This is the respondent’s application for leave to appeal.

3.  Pursuant to my directions, the application is to be dealt with on the papers and both parties have put in their respective submissions.

4.  In his Draft Notice of Appeal, the respondent puts forward two grounds of appeal.

5.  In Ground 1, it is said that I erred in “… treating the Respondent’s submission during a Case Management Conference on the proposed direction on specific discovery as a separate application and dismissing the same…”.

6.  In his written submissions, the respondent elaborated that:-

(a)   “The purpose of seeking the Court’s directions upon CMC was to avoid taking out a summons for specific discovery if the Claimant would concede upon CMC hearing, in order to save costs and time.”

(b)   “It is denied that the Respondent was making any separate oral application for specific discovery … the discussion on specific discovery during the CMC should not be regarded as a separate oral application, but it may be at most treated as a three-minutes summons hearing for specific discovery.”

7.  The submission is not understood. 

8.  Prior to the hearing, the respondent had written to the claimant to ask for the requested documents.  That was met with a reply that the claimant did not have such documents in their possession, custody or power.  There was nothing to indicate that the claimant had changed its stance.

9.  At the hearing, I specifically confirmed with Mr Sun for the respondent that he was making an oral application for specific discovery before proceeding with the argument.  It is puzzling that the respondent now denies making the application. 

10.  As I pointed out in the Decision, it is a pre-requisite for proceeding under Order 24, rule 7 that the proceeding (however one may call it) must be supported by an affidavit in compliance with sub-rule 7(3).  Without such evidence, there is no prima facie case that the requested documents exist and the proceeding is liable to be dismissed even at the call-over hearing.  The respondent has not advanced any ground of appeal or argument to challenge my decision on substantive merit.

11.  In Ground 2, it is said that:-

(a)   I erred in “granting costs order against the Respondent where no extra costs incurred.”

(b)   My summary assessment of the claimant’s costs for resisting the application for specific discovery at $4,000 is “unreasonable or inproportionate [sic], on the ground that all parties confirmed that only 30 minutes were spent to the said issue and the hourly rate of the Claimant’s counsel was a little bit more than HK$4,000 and there was no costs incurred on the part of the Equal Opportunities Commission.”

12.  It is noted that the respondent is not taking any issue in relation to section 73B(3) of the District Court Ordinance, Cap 336 (“DCO”).

13.  At the hearing, the claimant’s counsel asked for costs in the sum of $4,000 being the portion of his brief used in dealing with the respondent’s application for specific discovery.  He said that those instructing him, the Equal Opportunities Commission, was not claiming further costs.  He did not, however, confirm that his hourly rate “was a little bit more than HK$4,000”.

14.  The claimant’s counsel was briefed to represent the claimant at the case management conference on 18 February 2019, wherein the respondent made an impromptu application for specific discovery. As part of counsel’s brief fee was in fact spent in resisting the respondent’s application, I saw no reason why the respondent (having lost the application) should not bear the related costs.  As to quantum, the hearing lasted approximately an hour and the argument took about 30 minutes.  I agreed to apportion $4,000 to the application as the brief fee ($20,000) also covered counsel’s other work such as his attendance on client and solicitors and preparation.  In my view, it has not been shown that the assessment was “arrived at under a mistake of law or in disregard of principle; or under a palpable misapprehension as to the facts; or plainly in reliance on irrelevant matters; or to be such as to fall outside the generous ambit within which a reasonable disagreement is possible”: see Poon Shu Fan v Wong Tin Yan [2012] 5 HKLRD 512 at [10]-[11].

15.  I am not satisfied that the appeal has a reasonable prospect of success or that there is some other reason in the interests of justice why the appeal should be heard: see section 63A of the DCO.  The respondent’s application for leave to appeal is therefore dismissed. 

16.  I order the respondent to pay the claimant’s costs of this leave to appeal application, to be summarily assessed by me if not agreed. 

17.  For the purpose of the summary assessment, the claimant is directed to lodge and serve a statement of costs within 14 days.  The respondent may lodge and serve a concise statement of his objections (if any) within 14 days thereafter.  The assessment will be done on paper without an oral hearing and the parties will be notified of the result in due course.