XCHRX KWAN CHI ON v. HONG KONG BAPTIST UNIVERSITY and Another

1996, No.A12277

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

_____________

_____________

______________

J U D G M E N T

______________

1. This is an appeal against the Order of Master Kwan on 7 October 1997 giving leave to Kwan Tit On Daniel ("Daniel Kwan") to intervene and be added as a party to these proceedings ("the Present Action").

The background

2. The Plaintiff and Daniel Kwan are respectively Plaintiff and Defendant in third party proceedings arising from High Court Miscellaneous Proceedings No.2996 of 1990 ("The Main Action").

3. The point of issue between them in that action is whether or not Daniel Kwan is, as he claims and the Plaintiff denies, the Plaintiff's brother and so entitled to share in the Estate of the Plaintiff's deceased father, Kwan Kai Ming ("the deceased"). The Plaintiff believes him to be a nephew of the deceased and first cousin of the Plaintiff, born Kwan Tan Lau in Macau, but brought up by the deceased, who has falsely assumed the identity of a son of the deceased.

4. In the Main Action an Order was made that the issue of the parentage of Kwan Tit On should be tried by way of third party proceedings arising from that action ("the Third Party Proceedings"), with the Plaintiff as Plaintiff and Daniel Kwan as the Defendant.

5. Judgment was given in favour of Daniel Kwan in the Third Party Proceedings by Patrick Chan J. (as he then was) on 13 December 1994. The Plaintiff appealed against that decision, and on 22 November 1995 the Court of Appeal upheld the Plaintiff's appeal and ordered a retrial, after admitting and considering new documentary evidence as to the identity of Daniel Kwan which had not been available at the original trial.

6. To put it very simply, the critical issue in the third party proceedings was whether Daniel Kwan was the same person described in a birth certificate which had been produced by the Plaintiff, and which stated that "Daniel Kwan" had been born in Macau. Daniel Kwan categorically denied on oath that he was the person described in that birth certificate, or that he had ever lived or studied in Macau, and specifically denied that he had ever studied in the Chung Tak Middle School in Macau.

The documents

7. The new documents which were admitted and considered by the Court of Appeal all tend to establish Daniel Kwan's links with Macau; in particular the first group of documents, which were described as "the Baptist College documents", tend to establish that he did indeed study in the Chung Tak Middle School in Macau. The Baptist College documents themselves fall into two parts, the first part comprising the application form which was submitted by Daniel Kwan when he applied to enter the Baptist University, together with supporting documentation in the form of a certificate issued by the Chung Tak Middle School in Macau; and the second part consists of the Baptist College's Student Index 1962.

8. Of the documents it suffices to say for present purposes that the Court of Appeal found that they "would plainly have an important influence on the result of the case, and likewise are apparently credible to say the least" (see judgment of Nazareth, V-P at 24 E - I). The Court ordered that a new trial take place before another judge, and noted that upon such re-trial the parties will be at liberty to seek the admission of all relevant documents (page 25 I).

The Present Action

9. The Plaintiff considers that it is important to his case in the Third Party Proceedings that he obtains the originals of the Baptist College documents which, it is not disputed, are in the possession of the Baptist University. It will of course be procedurally open to the Plaintiff to issue a subpoena duces tecum against the Baptist University, requiring it to attend and produce the relevant documents at the trial. The Plaintiff however says that he needs to obtain possession of the documents ahead of the trial in order to be able to properly prepare his case ? specifically to have the documents analysed by a handwriting expert in order to verify the signature of Daniel Kwan therein, for which purpose the originals are required. If he relied simply on a subpoenaduces tecum in order to obtain the documents, he would then have to apply to the trial court to adjourn the proceedings to enable him to have the documents submitted to a handwriting expert for analysis, which would cause delay and expense, and he could not in any event be certain that such application would be granted by the Court.

10. For these reasons, the Plaintiff lodged the Present Action against the Baptist University, in which he claims simply the delivery up of the relevant documents by the University, in accordance with the principles laid down in Norwich Pharmacal v. Commissioners of Customs and Excise [1974] A.C.133, as extended by C.A. Software Care Limited v. Hawkins and Wood [1993] FSR 241. In the Norwich Pharmacal case the House of Lords held that where a person, albeit innocently and without incurring any personal liability, became involved in the tortious acts of others, he came under a duty to assist one injured by those acts by giving him full information by way of discovery and disclosing the identity of the wrongdoers, and for that purpose it mattered not that such involvement was the result of voluntary action or the consequence of the performance of a duty, statutory or otherwise.

11. The Baptist University has entered a defence in the Present Action denying that the Plaintiff is entitled to the relief which he claims, and denying that it was in any way involved in the alleged fraud of Daniel Kwan, but making it clear that it would abide any Court order for the production of the documents claimed.

The application to the Master

12. It is in the Present Action that Daniel Kwan succeeded before the Master in obtaining leave to intervene. In the affidavit which he swore for the purposes of such application, he stated :

(1) that he had had made a complaint to the Commercial Crimes Bureau of the Hong Kong Police to the effect that he believed that the Plaintiff had obtained the copies of the documents which he produced in the Court of Appeal by forging his (Daniel Kwan's) signature in a letter requesting the University to release the documents, and that such complaint was still under investigation;

(2) that the Plaintiff was seeking the assistance of the Court to obtain from the University original documents which contain confidential information relating to him;

(3) that he has been advised and believes that the Court has no jurisdiction to grant the relief sought against the University, and that it was his intention to issue a summons to strike it out as disclosing no reasonable cause of action; and

(4) that he therefore has an interest in the matters in issue in the proceedings and was entitled to be added as a Defendant in the action.

13. It was not disputed before me that the police have completed their investigations into the Daniel Kwan's aforesaid complaint and have concluded that there is no reason to believe that the Plaintiff committed any offence in relation to the obtaining of the documents in question. Mr Harris emphasized that there is no reason whatsoever for suspecting that any wrong-doing surrounded the Plaintiff's obtaining of the copies of the documents from the Baptist University, and that submission is supported by the results of the police investigations.

The interest of the Intervenor

14. The outcome of the Main Action will clearly be important to and materially affect the legal rights of the parties to it, most immediately in determining whether Daniel Kwan will be entitled to share in the estate of the deceased, which will in turn necessarily affect the size of the share which the Plaintiff will inherit from such estate. It is alleged by the Plaintiff in that action that Daniel Kwan has committed fraud, perjury and has been attempting to defraud the estate of the deceased by claiming to be his natural son. I fully accept that the outcome of the Third Party proceedings and the Main Action will be of very considerable importance to Daniel Kwan, not only in respect of his commercial interests but also in respect of his reputation and generally in the enjoyment of his legal rights.

15. At first blush therefore, it might appear that the outcome of the Present Action, since it constitutes but a step on the road to the conclusion of the Third Party Proceedings and thereafter the Main Action, is likewise a matter of great importance to Daniel Kwan and that, as was argued on his behalf by Mr Cheung, as a matter of procedural justice he "must be allowed to be heard in this action before any order for discovery is, in effect made against him ... the rules of natural justice require that Daniel Kwan he given an opportunity to be heard."

16. The question of how precisely the present action affects Daniel Kwan calls for closer scrutiny. It is important to bear in mind that the Court of Appeal has already examined copies of the documents in question and has clearly stated that they are apparently credible and would plainly have an important influence on the outcome of the Third Party Proceedings. It is also important to bear in mind that the documents can be obtained by the Plaintiff in those proceedings by issuing a subpoena duces tecum against the Baptist University, under which the University  which has admitted that it has the originals of the documents in its possession  will be compelled to attend and produce the documents (subject to any valid ground that it may raise for not doing so). All that the Plaintiff is attempting to achieve by way of the Present Action is to secure the delivery-up of those documents ahead of the trial so that it can have them analysed by a handwriting expert.

17. With those matters clearly in mind, it is important to consider what legitimate interest Daniel Kwan has in intervening in the Present Action, which is simply an evidence-collection exercise by the Plaintiff in preparation for the retrial of the Third Party Proceedings.

18. Mr Cheung argued that if the Plaintiff seeks the production of the documents in the Third Party Proceedings in the normal way, by issuing a subpoenaduces tecum against the University, the Defendant, being a party in that action, would have a full opportunity to put his case and make whatever representations he saw fit in relation to the Plaintiff's right to secure the production of those documents in the trial; likewise, it was submitted, if the Plaintiff made use of Order 38, r.13 to achieve the same result.

19. By contrast, if Daniel Kwan is not permitted to intervene in the Present Action, in which the Plaintiff is attempting to obtain the delivery-up of the documents by means of a side-door, so to speak, he will be denied the opportunity to put his case and make his representations in relation to the Plaintiff's right to obtain the documents from the University, which would place him at a disadvantage in the Third Party Proceedings and would clearly offend against his procedural rights and the principles of natural justice. The University, he submitted, may not see fit to incur the substantial time and costs involved in taking all the legitimate points which could be taken in order to defend the Present Action.

20. Furthermore the documents sought contain confidential personal information in relation to Daniel Kwan which he supplied to the University in pursuance of his application to study there. Such information is protected from disclosure by both the common law and statute.

21. In relation to common law protection, Mr Cheung referred me to Halsbury's Law of England, 4th Edition, Vol.8(1) inter alia at para.410-412 which states that for material to be protected as confidential it must be of limited public availability; of a specific character; and its availability to the public must be restricted. I accept for present purposes that the documents in question meet those criteria. At paragraph 419 the learned authors state that in addition to the foregoing criteria, the material must also have been communicated to the recipient in circumstances imposing an obligation of confidence; and at paragraph 468 it is stated that in respect of educational and pastoral duties, teachers and lecturers may be bound by general obligations of confidence inherent in their professions.

22. In relation to statutory protection of the documents from disclosure, I was referred to the Personal Data (Privacy) Ordinance, Cap.486 which in paragraph 3 of Schedule I provides as follows :-

"Personal data shall not, without the prescribed consent of the data subject, be used for any purpose other than ?

(a) the purpose for which the data were to be used at the time of the collection of the data; or

(b) a purpose directly related to the purpose referred to in paragraph (a)."

It is however important to note that various exceptions to the application of the aforesaid principles are expressly provided for in the Ordinance, and in particular, for present purposes, section 58 provides that the foregoing principles of protection shall not apply where the data is used inter alia for "the prevention, preclusion or remedying (including punishment) of unlawful or seriously improper conduct or dishonesty or malpractice, by persons".

23. Mr Cheung submitted that to take away Daniel Kwan's protection under the common law and statute without affording him a fair opportunity to present his case is a denial of justice.

Conclusion

24. These submissions are beguiling but not, in my view, correct upon a close analysis. In the first place it must be borne in mind that the information in question is already firmly in the public arena, copies of the documents having been admitted by the Court of Appeal upon the application of the well-known principles relating to the admissibility of fresh evidence, and which information constituted the sole ground upon which the Court of Appeal ordered a re-trial of the Third Party Proceedings. It was indeed precisely because the information in the documents in question, which it will be recalled was not available in the original trial (and which the Court of Appeal held to be apparently credible), bore so materially upon the issues in the Third Party Proceedings and tended to show that, if it was true, the Court may have been misled by the evidence which had been placed before it by Daniel Kwan, that a re-trial was ordered.

25. Naturally, in the eventual re-trial of the Third Party Proceedings all matters will be at large before the trial Court in the normal way, including any question as to the admissibility of the documents. Daniel Kwan (who is the Defendant in those proceedings) will be in a position to fully present his case in that respect and to argue, if so advised, matters as to the confidentiality and inadmissibility of the documents. His rights in that respect will not be diminished or whittled down if he is not given leave to intervene in the Present Action, particularly bearing in mind that the admissibility of the documents in the Third Party Proceedings will not properly be in issue in the Present Action. By his absence from the Present Action he will not therefore in any way be denied the opportunity to argue those matters at their proper time, when they subsequently arise for consideration.

26. The issue as to whether the Plaintiff is entitled to delivery-up of the documents as against the Baptist University is properly one to be determined between the Plaintiff and the University. The documents are the property of the University; the Plaintiff has a legitimate interest in the delivery-up of them prior to the commencement of the re-trial of the Third Party Proceedings, and has given an undertaking that the documents would not be used for any purpose other than such re-trial.

27. I note the comment of the court in Moser v. Marsden [1892] 1 CH 487 at 492 in which the same point was taken as in the present case, "that the defendant will not contest the case properly, and will not conduct the defence so energeticially as he would. But we cannot help that. With all deference to the Vice-Chancellor, I do not think the rule applies to this case".

28. I do not overlook the fact that the information contained in the documents all concerns Daniel Kwan, and that it is alleged to be confidential and protected by the law as such. However it is for the University to decide upon its proper response to the Plaintiff's claim, including any questions as to the protection of confidential information in the documents. It may be relevant to bear in mind in this connection, as Mr Harris submitted, the principle that the law does not extend its protection to preventing the disclosure of "confidential" information in relation to any misconduct of such a nature that it ought in the public interest to be disclosed to a person who has a proper interest to receive it.

Initial Services Limited v. Putterill and another [1968]1 QB 396

29. This is not to prejudge the issue in any way. The Present Action, as it seems to me, will fall to be decided largely upon the basis of the case as pleaded, in conjunction with the findings of the Court of Appeal. In my view neither justice nor convenience require the intervention of Daniel Kwan as a party for the matter to be properly and fairly adjudicated; rather, his intervention would serve only to unnecessarily confuse and complicate the clear issue to be determined, namely whether the Plaintiff is entitled to the delivery-up of the documents from the University.

30. Order 15, rule 6 of theRules of the Supreme Court is designed, inter alia, to secure the determination of all disputes relating to the same subject matter without the delay and expense of separate actions, and to ensure that the proper parties necessary for determining the point at issue are before the Court. To give leave to Daniel Kwan to be joined in the Present Action in which he does not, in my view, have a legitimate interest in being heard upon the point in issue therein, will only tend to increase rather than prevent a multiplicity of contested proceedings, which would be contrary to the true purposes of the Rule, and inimical to the just and expeditious disposal of the Present Action and the subsequent re-trial of the Third Party Proceedings.

31. For the reasons above, I order as follows :

(1) the Order of Master Kwan dated 7 October 1997 be and it is hereby rescinded;

(2) the application of Daniel Kwan to be joined as a defendant be and it is hereby dismissed;

(3) an order nisi that the Plaintiff's costs of the application and of this Appeal be paid by the said Daniel Kwan.