WONG PING SUNG v. WONG PAK CHEUNG AND ANOTHER

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 958 OF 1995

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RULING

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1. This is an appeal from the decision of Master Poon made on 10^th September 1998 wherein it was ordered by Master Poon that the 2^nd Defendant do within 14 days make and file an affidavit by its proper officer stating whether it has or has had at any time in its possession, custody or power the documents specified in the Schedule to the 1^st Defendant's Summons dated 7^th July 1998, namely, all statements, declarations made to the Labour Department by any witness and informant, and obtained by, or on behalf of the 2^nd Defendant, being the Defendant in Case No. WS29866/89, and for the purpose of defending the charge and if the said documents, or any of them, has or have been, but is or are not now in its possession, custody or power, stating when they parted with the same and what has become of the same, and further that the costs of this application be to the 1^st Defendant in any event.

2. The Notice of Appeal by the 2^nd Defendant asks for this Order of Master Poon to be set aside and that in place thereof it may be ordered that the 1^st Defendant's Summons dated 7^th July 1998 be dismissed with costs to the 2^nd Defendant in any event.

Background

3. This case arises from the Plaintiff's claim against the 1^st and 2^nd Defendants for damages arising from personal injuries which the Plaintiff sustained when he suffered an electric shock while working with an electric hammer at a construction site on 24^th March 1989. The Plaintiff's case against both Defendants are put on the basis that the 2^nd Defendant was the main contractor of the construction site where the Plaintiff was working at the time of the accident, and the 1^st Defendant was the sub-contractor of the 2^nd Defendant at the said construction site. The Plaintiff alleges that he was employed by the 1^st Defendant as a casual worker at the construction site and that the electric hammer and extension lead from the hammer to the wall socket was provided to him by the 1^st Defendant. The Plaintiff claims against both Defendants alleging that they were negligent, in breach of statutory duty and in breach of their duty as an occupier of the site under the Occupiers Liability Ordinance. In so far as this claim is concerned, an issue has arisen between the 1^st and 2^nd Defendants in that both the 1^st and 2^nd Defendants have served notices of contribution and indemnity upon each other in respect of the Plaintiff's claim for damages for personal injuries.

The application

4. The application by the 1^st Defendant for specific discovery under O.24, r.7 arises from the fact that after the accident to the Plaintiff the 2^nd Defendant was prosecuted by the Labour Department in the Magistrates' Court by Summons in 1989 in that, being the proprietor of an industrial undertaking to which the Factories and Industrial Undertakings (Electricity) Regulations applied, it failed to ensure that a portable apparatus operating at a voltage exceeding extra load voltage, namely, a portable electrical hammer, was protected against leakage to earth of current liable to cause electrical hazard, contrary to Regulations 14(b), 31(1) and 31(2) of the Factories and Industrial Undertakings (Electricity) Regulations, Chapter 59. This prosecution by Summons was contested by the 2^nd Defendant, and after a full two-day hearing at the Magistrates' Court, the 2^nd Defendant was acquitted of the offence specified in the Summons.

5. At the trial of the Summons in the Magistrates' Court, the 2^nd Defendant was represented by the same firm of solicitors as they are now represented in these proceedings, namely, Messrs W.K. To & Co. Based on the fact that the 2^nd Defendant had contested the prosecution in the Magistrates' Court in 1989, and was acquitted after extensive cross-examination by its solicitor of all the prosecution witnesses, the 1^st Defendant wrote, by letter of 4^th June 1998, to the 2^nd Defendant requesting for copies of all statements and/or declarations made by witnesses to the Labour Department in respect of that prosecution in the Magistrates' Court. This request from the 1^st Defendant was followed up by two faxes dated 18^th June 1998 and 29^th June 1998.

6. On 2^nd July 1998, the 2^nd Defendant's solicitors replied to the 1^st Defendant stating that they were waiting for their client's confirmation of instructions before they could give a reply to the 1^st Defendant's request for disclosure of the documents. On 6^th July 1998, the 2^nd Defendant's solicitors wrote to the 1^st Defendant's solicitors stating inter alia:

"After going through the former file in relation to the Labour Department prosecution no statements/declarations was found."

It appears that before this letter was received by the 1^st Defendant, the Summons dated 7^th July 1998 was taken out by the 1^st Defendant for the specific discovery of the said documents. This Summons was supported by the affidavit of Wong Yuen Hang, Kelly, the solicitor in charge of the case on behalf of the 1^st Defendant, in which it was stated that she verily believed that for the purpose of conducting the defence in the Magistrates' Court, Messrs W.K. To & Co. would have, in the normal course of conduct, obtained from the prosecution copies of all the statements and/or declarations made by those witnesses intended to be called, or actually called by the prosecution.

7. This application was contested by the 2^nd Defendant and an affidavit of Lee Wai Sang, a solicitor in the firm of Messrs W.K. To & Co., was filed. The affidavit of Lee Wai Sang states in paragraph 3 that before the hearing of the trial of the Labour Department Summons on 13^th November 1989, a request was made by the solicitor's firm, Messrs W.K. To & Co., to the Labour Department to ask for a copy of the Brief Facts on 5^th October 1989 and a reply was furnished to them by the Labour Department on 23^rd October 1989. It was also stated in paragraph 5 of that affirmation that Mr Lee was informed by Miss Toni Ting, an executive of Messrs. W.K. To & Co., that she had consulted the 2^nd Defendant's Senior Clerk, Miss Candy Yap, who was told, in turn, by the 2^nd Defendant's director Mr Lin Fei, who was at that time in China, that the 2^nd Defendant had never been in possession of the documents sought in the Schedule to the 1^stDefendant's Summons dated 7^th July 1998.

8. By letter dated 16^th July 1998, solicitors for the 1^st Defendant wrote to the solicitors of the 2^nd Defendant stating, inter alia, that if the 1^st Defendant will agree to file an affirmation pursuant to O.24, r.7 of the Rules of Supreme Court, the 1^st Defendant will withdraw their Summons. This, however, was not acceptable to the solicitors for the 2^nd Defendant who, by letter of 20^th July 1998, stated that their letter of 6^th July has already given an answer to the 1^st Defendant's previous request for confirmation whether or not the 2^nd Defendants have the statements or declarations made by the witnesses in the Magistrate proceedings.

9. On 4^th August 1998, an affirmation of Lin Fei, a director of the 2^nd Defendant was filed stating that according to the best of his knowledge, information and belief, the 2^nd Defendant has never been in possession of the documents set out in the Schedule to the 1^st Defendant's Summons dated 7^th July 1998.

10. There is also an affidavit of To Wai Keung sworn on 15^th September 1998 (i.e. sworn after the hearing before Master Poon from which this appeal stems). In that affidavit, To Wai Keung states that he is the senior partner of Messrs W.K. To & Co. and he had the conduct of the proceedings in Case No. WS 29866/89 in the Magistrates' Court where the 2^nd Defendant was acquitted of the charge after trial on 13^th and 14^th November 1989. Paragraph 4 of that affidavit went on to state :

"In or around the year 1989, the Labour Department had then no practice of releasing copy statements/declarations, if any, to the Defendant. Accordingly, our request was only made to the Labour Department to bespeak copy of the Brief Facts in question on 5^th October 1989. The same has been set out in Paragraph 3 of the Affidavit of Mr Lee Wai Sang sworn on 21^st July 1998."

The issue

11. From the above, it would seem that the issue is narrowed down and confined to whether the 2^nd Defendant has sufficiently answered the 1^st Defendant's request for these documents and/or whether the 2^nd Defendant has sufficiently and clearly stated that they have never been in possession, custody or power of the documents sought by the 1^st Defendant. However, at the hearing of the appeal, Mr W.K. To, appearing for the 2^nd Defendant, informed me that the 2^nd Defendant was contesting this application by the 1^st Defendant as a matter of principle. In this connection, Mr To argued that firstly, the onus is on the 1^st Defendant to make out a prima facie case that the 2^nd Defendant have the documents sought.

12. Mr To relies heavily on Circular No.42/90 from the Hong Kong Bar Association which is headed "Supply of Prosecution Papers in Magistrates' case". That Circular is dated 24^th August 1990 and begins by stating that "After protracted negotiations between the Attorney General's Chambers, the Bar Association and the Law Society, and after consultation with the police, the following agreement has been reached." Paragraph 2 of that Circular states that where the defendant pleads not guilty, and upon request by his legal representatives, they will be supplied with copies of the witness statements, together with translations where available.

13. In his argument, Mr To relies on this Circular to say that prior to August 1990, there was no such regulated practice whereby in prosecutions taking place in a Magistrates' Courts, statements of witnesses will be supplied on request by the prosecution to the Defence. Mr To further argues that since in 1989, there was no such regulated practice and therefore the 2^nd Defendant had no power to ask for such witness statements and/or declarations from the Labour Department in respect of the prosecution. Miss Wong on the other hand, acting for the 1^st Defendant, counters this argument by pointing to a letter from the Labour Department dated 29^th September 1988 (sic) which was received by the solicitors for the 1^st Defendant on 30^th September 1998. The letter is headed "Release of Witness Statements and Expert Reports to the Defence". Paragraph 2 of that letter reads:

"Please be informed that it is our long established general practice that our department would release the witness statements and expert reports, if any, to the defence upon request, particularly those witnesses who would be subsequently called at trial on behalf of the prosecution, the practice was the same as back in 1989."

14. The second point taken by Mr To relates to the relevance of the documents sought. He argues that the 1^st Defendant has failed to make out the relevance of the documents sought. Alternatively, even if they are relevant, he says that that relevance is minimized in view of the fact that the 1^st Defendant has, in their possession, a full transcript of the trial which took place in the Magistrates' Court.

Further argument

15. After the initial arguments had been completed by the parties in this appeal, but before I had given my decision thereon, Mr To on behalf of the 2^nd Defendant applied to be heard in further submission on law. Despite objection by the Respondent, I granted him leave to make further submissions.

16. His further submission was based on the provisions of the Personal Data (Privacy) Ordinance, Cap. 486 ("the Ordinance"). He submitted that firstly, Messrs W.K. To & Co. as well as the 2^nd Defendant are both "data user" within the meaning of the Ordinance. Secondly, that Section 20(1)(b) of the Ordinance obliges them both to refuse to comply with the 1^st Defendant's request for the statements/declarations since that request amounts to a "data access request" and that Messrs Wilde Sapte have not furnished them with the consent of those individuals whose personal data are contained in those statements or declarations.

17. Where discovery is concerned, it is usually divided into two stages. Firstly, the discovery which involves the making of a list of documents which are or have been in the possession, custody or power of a party relating to a matter in question in the cause (whether or not an affidavit may be required to verify such list) and secondly, the production for inspection of such documents listed.

18. The short answer to the further argument advanced by Mr To is that even if the Ordinance prevents or prohibits either his firm on the 2^nd Defendant from disclosing any personal data that may be contained in the documents sought, it cannot in any way stop him from compliance with the first stage of discovery.

19. Furthermore, Section 20(1)(b) of the Ordinance prohibits a data user from complying with a data access request if the data user cannot comply with the request without disclosing personal data of which any other individual is the data subject unless those other individuals has consented to such disclosure.

20. "Data user" is defined in the Ordinance as:

"in relation to personal data, means a person who, either alone or jointly or in common with other persons, controls the collection, holding, processing or use of the data."

and "data access request" is defined in Section 18(1) of the Ordinance to be a request by an individual, or a relevant person on behalf of an individual, (a) to be informed by a data user whether the data user holds personal data of which the individual is the data subject; (b) if the data user holds such data, to be supplied by the data user with a copy of such data.

21. It is quite clear from these definitions that firstly, the request for specific discovery by the 1^st Defendant from the 2^nd Defendant does not come within the meaning of "data access request" as defined in the Ordinance and secondly, that neither Messrs W.K. To & Co. nor the 2^nd Defendant could be said to be a "data user".

22. Neither does Section 4 in conjunction with Principle 3 of the Ordinance avail Mr To's argument here for once again Section 4 only applies to a "data user". It may be that the Labour Department is a "data user" as defined, but I am not convinced that either the 2^nd Defendant or Messrs W.K. To & Co. come within that definition.

23. Ultimately, I take the view that the Ordinance cannot stand in the way of the specific discovery sought by the 1^st Defendant in this case.

The Law

24. The principles relating to the application for specific discovery is set out by Cheung J. in the case of Lee Nui Foon v. Ocean Park Corporation (No.1) [1995] 2 HKC 390. The position as stated by Cheung J. can be summarized as follows:

25. Applying these principles to the present case, firstly, there can be no question that the documents, the subject matter of this specific discovery, did exist at one time, at least in so far as the Labour Department is concerned. It is common grounds between the parties that the file for this prosecution kept by the Labour Department has now been disposed of due to the lapse of time. Secondly, from all the circumstances of this case, it is not unreasonable to believe that the 2^nd Defendant may have or may have had either possession, custody or power of the documents sought in the sense that even if the documents were not physically within the possession of the 2^nd Defendant, these documents may have been kept by his solicitor for the purpose of defending this prosecution in the Magistrates' Court, in which case, the 2^nd Defendant would have power or custody over them. Thirdly, there can be no question, in my mind, that the contents of those statements sought by way of discovery is relevant to the present action because not only does it deal with the very accident complained of here, but looking at the transcript of the trial in the Magistrates' Court, the entire case was fought on the cause of the accident to the Plaintiff as well as the fault and the responsibility for that accident. Once relevance of the document sought is made out, it must follow, therefore, that discovery is necessary for disposing fairly of the cause or matter in this action. Furthermore, the class of documents sought has not been defined or described so widely as to include documents which are not relevant to the issue. It must therefore follow, at least prima facie, that the 1^st Defendant has made out a case for specific discovery of the documents sought.

Discretion

26. Despite the fact that the 1^st Defendant has made out a prima facie case, whether or not specific discovery is ordered is a matter of discretion. This discretion is to be exercised having regard to all the surrounding circumstances of the case. When one looks at the letter of 6^th July 1998, from Messrs W.K. To to the 1^st Defendant's solicitors, and also the affidavit of Lee Wai Sang, as well as the affirmation of Lin Fei, it would appear that the 2^nd Defendant's case is on the footing that the 2^nd Defendant never had possession, custody or power of these documents. And yet if that was the case, it would have been the easiest of things for the 2^nd Defendant to have filed an affirmation to that effect. Indeed, by its letter dated 16^th July 1998, the 1^st Defendant's solicitors, in paragraph 4 thereof, invited Messrs W.K. To & Co. to file an affirmation to that effect upon which they shall withdraw their Summons. When one looks at the letter of 6^th July 1998 from Messrs W.K. To & Co., it merely states that after going through the former file in relation to the Labour Department prosecution, no statements/declarations was found. This offer was not taken up. It does not go far enough to say that those statements/declarations were never obtained or never in the possession of their firm.

27. Looking at paragraph 3 of Lee Wai Sang's affidavit, it merely states that before the hearing of the trial of the said Summons on 13^th November 1989, a request was made by their firm to the Labour Department for a copy of the Brief Facts on 5^th October 1989, and a reply was furnished to them on 23^rd October 1989. Not even the word "only" was used and that statement, on its own, does not remove the possibility of Messrs W.K. To & Co. asking for or obtaining, at some other time, the witness statements and/or declarations in relation to that prosecution. Paragraph 5 of that same affidavit again does not sufficiently answer the 1^st Defendant's request. It is based on triple hearsay and to the effect that the 2^nd Defendant had never been in possession of the documents set out in the Schedule to the 1^st Defendant's Summons dated 7^th July 1998. Likewise, the affirmation of Lin Fei merely states the same, namely, that the 2^nd Defendant has never been in possession of the documents as set out in the Schedule to the 1^st Defendant's Summons dated 7^th July 1998. Looking at the affirmation of Lin Fei, it would be reasonable to assume that that affirmation was prepared by the solicitors for the 2^nd Defendant for Mr Lin to affirm. Had that affirmation contained not just the word 'possession' but also the words 'custody and power', that would no doubt have been a full answer to the 1^st Defendant's request, but that was not the case.

28. Lastly, the affidavit of To Wai Keung states that in 1989 the Labour Department had no practice of releasing copy statements/declarations, if any, to defendants and accordingly their request was only to the Labour Department for the Brief Facts on 5^th October 1989. It does not exclude other possibilities of their obtaining the statements/declarations at other times whether requested or not.

29. At the hearing of this appeal, I was given no satisfactory explanation by Mr To, who appeared for the 2^nd Defendant, as to why the affirmation of Lin Fei did not contain those two words, namely, 'custody and power' as well. Looking at the way in which this matter has been handled and the incomplete and piece-meal fashion in which answers had been purportedly given by the 2^nd Defendant or its solicitors to the 1^st Defendant, it has generated even more suspicion than would otherwise have been the case. No doubt it was for this reason that the Master made the order that he did, and if I may say, it is a suspicion which I share.

30. Ultimately, it boils down to this. There has never been a clear and complete answer by the 2^nd Defendant or its solicitors that they have never obtained or been supplied with the statements/declarations requested by the 1^st Defendant.

31. For these reasons, I shall re-affirm the order made by Master Poon on 10^th September 1998. This appeal is therefore accordingly dismissed. There shall also be an order nisi for costs of this appeal to be paid by the 2^nd Defendant to the 1^st Defendant, such costs to cover the application for further argument by the 2^nd Defendant and the hearing of the further argument itself.