WU KWOK HUNG v. DAH CHONG HONG (MOTOR SERVICE CENTRE) LTD AND ANOTHER

HCPI 768/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 768 OF 2006

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REASONS FOR RULING

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1.  Having heard the parties on this matter I have adjourned the appeal sine dine to be brought on seven days notice, and made the following directions:

(1)	The solicitors for Dah Chong Hong shall enquire of Pak Bo, whether or not they still hold a copy of any document evidencing the arrangement of cooperation between Dah Chong Hong and Pak Bo, for the transport of Dah Chong Hong employees prior to May 1999; and if such a copy is still in existence, supply a copy to the solicitors for the plaintiff;
(2)	They shall further enquire of Pak Bo whether or not Pak Bo hold any documentary record of the termination of any such arrangement;
(3)	The solicitors for Dah Chong Hong shall enquire of Pak Bo and Ms. Chan Kit Ling whether or not there is still in existence a copy of any contract or other documentary evidence of the arrangement for the transport of employees of Dah Chong Hong, after May 1999, and if such documents are still in existence, supply copies to the solicitors for the plaintiff.

2.  My reasons for so directing are as follows.

3.  The specific discovery sought by the plaintiff far exceeded that which was proper having regard to the scope of the proceedings.  Consequently, the Master was quite right to refuse the application.

4.  Order 24 r 10 entitles a party to see any document to which reference has made on the other party’s pleadings, affidavits or witness statements.

5.  The evidence of Ho Kwok Foon, the Senior Human Resources Manager for Dah Chong Hong, is that between June 1994 and May 1999, Dah Chong Hong “co-operated” with Pak Bo to provide a free bus service.  The word “co-operated” has been carefully chosen to avoid direct reference to any document, but the clear allusion is that there was a contract between Dah Chong Hong and Pak Bo for the provision of the bus service.  There was plainly a commercial arrangement between the parties which is more likely than not to have been evidenced by some document.

6.  The solicitors for Dah Chong Hong, at the hearing of the appeal, informed those representing Mr Wu that enquiry had been made of Dah Chong Hong whether or not that company held any copy of the contract with Pak Bo.  Dah Chong Hong advise that no document now exists in their possession. 

7.  Mr Wu’s solicitors should have been advised of that enquiry, and the result, long before the hearing of the appeal.

8.  Mr Ho’s evidence is that that bus service was cancelled in 1999.  Again, although no document is specifically referred to, the clear inference is that as a commercial arrangement was terminated, it is likely that it was terminated in writing.

9.  Ms Chan Kit Ling’s evidence is that she voluntarily organised and negotiated with Pak Bo to arrange an employee’s bus.  Although no document is specifically referred to in her witness statement, the clear allusion is that, again, there was a commercial arrangement, which is likely to have been reduced to writing.

10.  Having regard to the issues raised in the case, particularly the question of who was operating the bus service at the relevant time, the documents I have referred to are plainly relevant and ought to be disclosed.  The documents are necessary for the fair disposal of the cause.

11.  The following passage from Hong Kong Civil Procedure 2007, 24/10/1 is relevant:

“

Where a document is not specifically mentioned in an affidavit or pleading or witness statement, but an assertion made in the affidavit or pleading or witness statement gives rise to the inference that the document must or might exist, “reference is made” to it in the affidavit or pleading or witness statement for the purpose of ordering its production only if, on the fair meaning of the words in that context, the document is directly alluded to in the affidavit or pleading or witness statement, and not if the reference arises merely by inference.”

The documents are directly alluded to, and reference to them does not arise merely by inference.  The documents are directed to a specific issue.  By carefully drawing of the witness statements, so as not to refer to the specific documents, but instead to the commercial arrangements that are likely to have been evidenced by a document, a party cannot avoid production of the relevant documents.

12.  It is my preliminary view is that having regard to the nature of the issues in the case, those advising Dah Chong Hong should have made enquiry of both Pak Bo and Ms Chan for the relevant documents before the appeal came on for hearing, and further, should have been in a position to inform the court of the position in relation to those documents and their present existence.  It is no answer to say that they do not represent either Pak Bo, or Ms Chan.  They have witness statements from both, and should have made enquiry for the documents at the time the witness statements were being prepared.

13.  All questions of costs are reserved.