CHAU KA CHIK TSO AND OTHERS v. SECRETARY FOR JUSTICE

HCA10670/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.10670 OF 2000

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J U D G M E N T

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1. This is an application for specific discovery, in a dispute over the area of a piece of land known as Lot No. 1212 in D.D. 115, Shan Pui, Yuen Long.  The Lot was sold by auction in 1916, when it was stated to be 18 acres in area.  It was later subdivided into 5 subdivisions.  The plaintiffs, who are the registered owners of the sub-sections, are now in occupation of a total of some 24.66 acres.

2. They now seek, against the Government, a declaration that the area which was granted to and registered in the name of the original purchaser by auction was 24.66 acres instead of 18 acres and concurrent declarations in respect of what they term the discrepant areas of the sub-sections.  In the alternative they seek declarations based on adverse possession of the discrepant areas.  The Government counterclaims for declarations that the discrepant areas are Government land.  The nature of the dispute is best seen from the plans which appear in the appendices to the Statement of Claim.

3. This ruling is only concerned with the plaintiff’s case for declarations as to the area of the lot and its sub-sections.

4. The plaintiffs’ case is based on an expert opinion given by Mr I.F. Wootten, an authorised land surveyor, who himself was formerly employed by the Lands Department.  The Government’s case is based on an expert opinion given by Mr Sin King Kau, the acting Chief Land Surveyor in the Lands Department.  Both experts base their opinions on various documents, inspection of which has been given.

5. The Government also relies on the evidence of a Ms Ho Ka Ling, Clara, an Estate Surveyor in the District Lands Office at Yuen Long (DLO/YL) who gives evidence based on title search in the Yuen Long Land Registry and the DLO/YL .

6. Paragraph 2 of Mr Sin’s report reads

“

2.

The information contained below are, facts where based on plans, files and records searched in the Yuen Long New Territories Land Registry, District Survey Office (‘DSO/YL’), District Lands Office/Yuen Long (‘DLO/YL’) and the Public Record Office, true to the best of my knowledge and belief where based on my knowledge and past experience.”

7. Now the plaintiffs apply under rules 7 and 10 of Order 24 of the Rules of the High Court for specific discovery and inspection of the following documents, listed in the Schedule to the summons :

“	(1)	All copy and original plans, files and records in the Yuen Long New Territories Land Registry, District Survey Office (‘DSO/YL’), District Lands Office, Yuen Long (‘DLO/YL’) and the Public Record Office referred to by Mr. Sin in the Defendant’s Expert Report;
	(2)	All copy and original documentation and correspondence under the specific land matter/administration files for the parent Lot 1212 and any related file(s) for the sub-sections with both DLO/YL and DSO/YL; and
	(3)	All copy and original documentation and correspondence under the specific land matter/administration files for the parent Lot 1212 and any related files for the sub-sections with previous NTA (New Territories Administration) and DO (District Office) before they were taken over and replaced by the DLO/YL and DSO/YL respectively in the early eighties.”

8. The plaintiffs’ application is supported by the affirmation of their solicitor, Mr Ngan Chiu Yee.  He says that Mr Wootten has sought access to all the files and records in connection with Lot 1212, but has only been allowed a restrictive access to them.  By correspondence, the plaintiffs’ solicitors have sought inspection of all the “plans, files and records” referred to in Mr Sin’s paragraph 2. It is said that without examining these documents, the plaintiffs cannot tell if Mr Sin was selective in the facts, or whether he inadvertently omitted to consider other material facts in the plans, files and records which could cast doubts on his concluded opinions.  The plaintiffs cannot effectively challenge his credibility without knowing and examining all the documents which Mr Sin reviewed.

9. Evidence in opposition comes from Mr Ho Chi Sum, a senior government counsel who says, in effect, that all relevant documents have been inspected.  Mr Wootten has not commented on Mr Sin’s report and he is searching for some evidence which may support his opinions.  The plaintiffs are seeking a fishing expedition.  Mr Wootten is being instructed to search or inspect unlimited and unspecified categories of documents and files, insofar as they have some relationship to Lot 1212, irrespective of relevance or necessity.  Some 80 files are involved.

10. In his 4^th Affirmation, in reply to the Government’s response, Mr Ngan says that Mr Wootten advises him, and he believes that the most useful files are two in number, namely the administration file of Lot 1212 and the DSO/YL working file.  He continues :

“It is important to note that there was different cadastral boundaries shown at different times and it is relevant and important to establish whether Government had issued any plans showing the different boundaries.”

11. In effect, therefore, the plaintiffs are seeking discovery, not only of the documents referred to by Mr Sin in his report, but also of all the documents to which he had access.  This appears to mean 80 files in the DLO/YL and DSO/YL plus whatever Mr Sin looked at in the Public Record Office.  It includes records going back to the New Territories Administration; presumably right back to 1916.  If the defendant has to file an affidavit as sought, it will be necessary for him to list all the documents in all the files, insofar as they are relevant.

Principles

12. Order 24 of the Rules of the High Court imposes on the parties a duty to make discovery of documents which are or have been in their possession, custody or power relating to an matter in question between them in the action. If something appears to be missing — Kempster JA in Daiwa Bank Ltd v. Hing Yip Fat Co. Ltd [1990] 2 HKC 82 at 84G referred to a “lacuna in the list already served” — rule 7 of Order 24 gives the court the power to order specific discovery.  The party seeking discovery must state his belief that the other party has or has had the document or class of documents specified, and that it relates to one or more of the matters in question.

13. Rule 7 is subject to rule 8 which provides that the court, if it is satisfied that discovery is not necessary, may dismiss the application and must refuse to order discovery insofar as it is of the opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs.  Similar provisions appear in rule 13 relating to applications for production or inspection.

14. It is for the party from whom discovery is sought to show that what is sought is not relevant and for the party seeking discovery or inspection to show that it is necessary.

15. The test of relevancy was propounded by Brett LJ inCompagnie Financiere du Pacifique v. Peruvian Guano Co.(1882) 11 QBD 55 at page 63 :

“It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue but also which, it is reasonable to suppose, contains information which may — not which must — either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words ‘either directly or indirectly’ because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary if it is a document which may fairly lead to a train of enquiry ... .”

16. This formulation has been applied very widely, with the result that in most cases, documents are discovered, inspected and copied which turn out ultimately as much use in the case as their equivalent weight in Peruvian guano.

17. The formulation does not justify discovery demands which would involve parties “being required to turn out the contents of their filing systems as if under criminal investigation merely on the off-chance that something might show up from which some relatively weak inference prejudicial to the case of the disclosing party might be drawn”; see O Company v. M Company [1996] 2 Ll. L. R. 347 at 351.

18. The Peruvian Guano formulation is followed in Hong Kong; see Deak & Co. (Far East) Ltd v. NM Rothschild & Sons & Ors [1981] HKC 78.  But that case is also authority for the proposition that discovery must not be oppressive.  Oppression is a question of fact and inconvenience does not equate to oppression.  See Man Won Co & Anor v. Tay Vi Bing & Anor, HCA2553/1989.

19. Where discovery of a class of documents is sought, it must not be defined so widely as to include documents not relevant to the issue. See Molnlycke AB v. Procter & Gamble Ltd (No. 3) [1990] RP 498.

20. Fishing is not allowed.  In Vo Thi Do & Ors v. Director of Immigration [1998] 1 HKLRD 729 Litton VP said that “requesting a large volume of information in the hope that by a microscopic examination of it some defect would be found was beyond the scope of the issues defined by the parties … was a fishing expedition and achieved neither of the purposes set out in Rule 13”; i.e. disposing fairly of the cause or matter or saving costs.

Paragraph 1 of the Schedule

21. The plaintiff’s case on paragraph 1 of the Schedule, as presented by Mr Ismail is based on two grounds, the first being that all the documents seen by the expert and the witness in the 80 files are relevant because they all relate to the issue of where the boundaries lie.  The second is that they should be disclosed, or inspection given of them because they form the “substance” of the expert’s report and they would also allow the plaintiffs, and the court, to decide the credibility of the expert.

22. The defendant’s position is that all that is relevant has been discovered, and inspection given.  The plaintiffs say that all the files are relevant but the plaintiffs would be content if Mr Wootten had access to them, as Mr Sin and Ms Ho had. To deprive Mr Wootten of such access would give the defendant the absolute and unfettered discretion to decide which documents and facts in the files are relevant.  This is unfair.

23. It is argued that the discovery sought is necessary.  The purpose of the rule 8 and rule 13 is :

“…to ensure that one party does not enjoy an unfair advantage or suffer a disadvantage in the litigation as the result of a document not being produced for inspection”

— per Neill LJ in Wallace Smith Trust Co. Ltd (in liq) v. Deloitte Haskins & Sells (a firm) & Anor [1996] 4 All ER 403 at page 412.

24. I will come back to this if need be but would comment that that the defendant is in no different position from any other party who has the unfettered discretion to decide what he lists in Schedule 1 Part 1 of his list of documents.  He decides what he has that he thinks is relevant and puts it down.  If the other party wants something else he has to satisfy the court under rule 7 that the first party has it, and that it is relevant.  He does not get to look through the first party’s files to see if something has been missed.

25. Mr Ismail says that the parties may, by order of the Master, call expert witnesses the substance of whose evidence has been disclosed.  The relevant rule, rule 1 of Order 37 provides that the substance of the evidence is to be disclosed in the form of a written report.  However, according to Mr Ismail, the “substance” includes the underlying basis or foundation of the expert opinion and conclusions.  He relies on Canadian cases ins support of this proposition, in particular Bischler v. Bischler 1997 A.C.W.S. J Lexis 15592.

26. In that case Hrabinsky J of the Saskatchewan Queen’s Bench said that the “substance” was intended to include not only the opinions but the factual information on which they were based.  That factual information must be specific enough so that a determination may be made whether the conclusions or opinions can be supported by the facts.  It was held that the report of a witness called as an expert in family therapy, child custody, access and the like which detailed statements made by the child concerned to the witness did not contain the substance of the witness’s proposed testimony.

27. This was followed in Martin v. Inglis 2002 Sask D.J. Lexis 425, another Saskatchewan case where what was in issue was the disclosure of the expert’s working file, and Olson v. Bashur 2002 Sask. R. Lexis 40253, in which the court referred to an earlier Ontario case which had held that the data and materials on which the expert based his opinion had to be disclosed.

28. Leaving aside the question of whether Canadian cases are helpful, which they will only be if the discovery regime in the Canadian province concerned are similar to that followed in Hong Kong, I do not see that these cases assist.  While the expert may have been required to disclose the materials he relies on, in none of the cases was he required to disclose the materials he did not rely on.  What the plaintiffs want here is to look at the materials the defendant’s expert did not rely on, to see if he should have done.

29. Reference was also made to Chan Mun Kui v. Lau Yuk Lai, unreported, HCPI301/1998, in which Seagroatt J held that any material identified by the expert as having been considered by him in the formulation of his opinion must be disclosed; the party obtaining the opinion could not rely on privilege.  His Lordship further held that the status of the expert evidence called for complete disclosure of all that the expert had provided by way of antecedent opinion and evaluation “including the documentary material which he has considered in reaching that opinion.”

30. Again I do not think this helps for the same reason.  The expert should disclose the documents he relies on; but it cannot follow that he must disclose everything he has looked at, in arriving at his opinion, but not relied on.  Sometimes an expert refers to an excerpt from a text book in his field.  It cannot follow that he is required to produce the whole text book, in case he has missed something else in it.

31. Mr Ismail also relies on Canadian authorities on the necessity for an expert to produce all documents and communications which are or have been in his possession and which relate to his credibility.  I do not know how the Canadian regime compares with ours, but in ours discovery which relates solely to credit is not allowed.  See George Ballantine & Son v. FER Dixon & Son [1974] 2 All ER 503, cited in Man Won Co. & Anorabove.  Again I do not see that these cases assist.  The issue seems to have been whether or not the expert should produce documents produced by him or relied on by him or whether they were privileged; not whether he should produce documents seen but not relied on.

32. For my own part, I do not think that the fact that Mr Sin refers to “facts based on plans, files and records … true to the best of my knowledge and belief” can be taken as meaning that he relies on all the plans, files and records in all the 80 files, or however many there are, in the sources he names.  He has disclosed the plans, files and records the documentary material which he has considered in reaching opinion and that is what, as an expert, he is required to do.

Paragraphs 2 and 3 of the Schedule

33. The plaintiff’s argument here is that Mr Wootten has only been allowed a restrictive access to the files.  This has not been denied and no explanation has been given for the denial.  He is an Authorised Land Surveyor.  The files are working files or track records of a historic or informative nature which may be crucial.

34. This, I think, is the problem.  There may be information in the files, which may be crucial, but that can be said about any files which contain documents of which discovery is given.  A party cannot go fishing in the hope of finding something.

35. Mr Ismail says that the plaintiffs are not fishing.  He cites the opinion of Kerr LJ in In re Norway’s Application [1987] 1 QB 433 at 844 :

“… although ‘fishing’ has become a term of art for the purposes of many of our procedural rules dealing with applications for particulars of pleadings, interrogatories and discovery, illustrations of the concept are more easily recognised than defined. It arises in cases where what is sought is not evidence as such, but information which may lead to a line of inquiry which would disclose evidence. It is the search for material in the hope of being able to raise allegations of fact, as opposed to elicitation of evidence to support allegations of fact, which have been raised bona fide with adequate particularisation.”

36. He says that the plaintiffs are seeking evidence, rather than information which may lead to a line of inquiry which would disclose evidence.  That may be, but the difficulty is that no one knows if such evidence exists and certainly there is nothing on which the plaintiffs can base a belief that specific documents exist.

37. I note that Mr Wootten is an Authorised Land Surveyor.  Mr Mok, who represents the defendant, refers to section 30 of the Land Survey Ordinance, Cap. 473.  This provides that the Land Survey Authority may allow an authorised land surveyor to inspect any land boundary record during office hours and subject to paying the prescribed fee.  So far as I can see the surveyor does not seem to have any powers which might give him the right to unfettered inspection of files.

Conclusion

38. Mr Sin has, in his report, relied on 24 documents which appear in the appendices.  Mr Wootten has also referred to more than 20 documents.  They are all, I think, matters of public record.  Both the reports are full and detailed and, as they stand, should assist the court to arrive at a decision.

39. There is nothing to show that there is, rather than may be, any lacuna in the discovery already given.  The chances are remote that there may be some document hidden away in the files which might assist.  The plaintiff’s position, put in simple language, is that there might be, so they should be allowed to search for it.  That is quite simply fishing.  See Vo Thi Do, above.

40. Further, the scope of the discovery sought is far too wide.  I do not see that there can be any basis for saying that all the documents in all the files must be relevant to the location of the boundaries of Lot 1212.  The class of documents sought is so wide that it must inevitably contain documents not relevant to the issue.  See Molnlycke AB v. Procter & Gamble Ltd, above.

41. In addition, it seems to me that to require the defendant to file an affidavit detailing all the documents in 80 or more files goes further than inconvenience, in the situation where the plaintiffs do not know what they are looking for, or that it is exists.  It is oppressive.

42. Reference is made to plans showing different cadastral boundaries which the Government may have issued.  The plaintiffs’ witness says that it is relevant and important to establish whether Government has issued such plans.  Interrogatories have not been mentioned.  I wonder if interrogatories might cast light on whether any such plans were issued.  This would obviously be a more desirable and economical method of finding out, than by requiring the defendant to detail all the documents in the 80 files, or by letting Mr Wootten search through them in the hope of finding something.

43. I am not, therefore, satisfied that the discovery and inspection sought is necessary.  The summons is therefore dismissed with costs to the defendant to be taxed if not agreed.