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

ACTION NO. HCPI 768 of 2006

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R U L I N G

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1. The plaintiff took out an Application by Summons under Order 24 rule 7 for Discovery dated 28 May 2007.  In that Summons, the plaintiff sought an Order that the director of the 1^st Defendant or its authorized manager file an affidavit stating whether the 1^st Defendant had the documents listed in the Schedule of the Summons in its possession, custody or power.

2. The Schedule sought:

(i)

All written contracts made between the 1st Defendant and 百寶旅遊有限公司 (“百寶”) in respect of the arrangement for provision of coaches for ferrying the 1st Defendant’s employees to work for the period from 1994 to the present; and

(ii)

All correspondence and/or written communication and documents exchanged between (a) the 1st Defendant and 百寶, and (b) Ms. Chan Kit Ling, Mr. Wong Chun Hoi (translation of 黃鎮海) or other employee(s) of the 1st Defendant of the one part and 百寶of the other part in respect of the arrangement for provision of coaches for ferrying the 1st Defendant’s employees to work for the period from 1994 to the present.

The claim

3. The claim can be shortly summarized in this way.  The plaintiff and the 2^nd defendant were employees of, and working in the 1^st defendant’s Motor Service Centre in Ap Lei Chau.  The plaintiff was employed as a warehouse keeper, and the 2^nd defendant was employed as a driver. On the morning of 6 May 2002, the plaintiff and the 2^nd defendant both boarded a coach in North Point, bound for work in Ap Lei Chau.  During the coach journey, the 2^nd defendant assaulted the plaintiff.  As a result of the assault, the plaintiff suffered personal injuries and the 2^nd defendant was charged with one count of “Assault Occasioning Actual Bodily Harm” contrary to s39 of Cap 212.  The 2^nd defendant pleaded guilty to the charge in Eastern Magistracy on 17 July 2002, was given a sentence of 2 months’ imprisonment suspended for 18 months, and ordered to pay compensation of $1000.

4. It was alleged by the plaintiff in this action that the 2^nd defendant had assaulted the plaintiff on an occasion prior to the attack on the coach on 6 May 2002.  The plaintiff claims that he was assaulted by the 2^nd defendant on or about 7 February 2002, when he and the 2^nd defendant were delivering goods in the course of their employment.  In the circumstances the plaintiff says that the employer, that is, the 1^st defendant should be liable in negligence for not taking steps to prevent the attack on 6 May 2002; and should be found vicariously liable for the attack on 6 May 2002.

The pleadings

5. The plaintiff pleaded that the attack on him on board the coach on the way to work happened “in the course of his employment with the 1^st defendant”.  It was claimed that the transportation by coach to Ap Lei Chau was “arranged and provided by the 1^st defendant”.

6. The 1^st defendant denied that the attack took place “in the course of employment”; and denied that “the coach bearing registration number FK 3688 was arranged and provided by the 1^st defendant”. 

The Law

7. The principles applicable to discovery are well known.  They can be summarized as follows:

1. Discovery must “relate to matters in question in the action”, see O24 r1.

2. Even if a document might be said to fall within that description, discovery should not be ordered if it is not necessary for disposing fairly to the cause or matter, or for the saving of costs, see O24 r8.

3. Discovery should not be allowed if it is fishing or unduly oppressive.

4. An application for discovery under O24 r7 must be supported by an affidavit deposing to the belief of the deponent that the other side has the relevant documents, and must be based on more than speculation as to the existence of documents and their relevance, otherwise it is likely to be oppressive.  See O Company v M Company [1996] 2 Lloyds Rep 347.

5. Any Order made (and therefore any application made) must identify with precision the class of documents required.

8. Potentially an order for discovery is a very onerous order to make against a party.  For that reason, the rules require that the affidavit identifies clearly the documents in respect of which the application is made with reasonable particularity, shows grounds for belief that such documents are or have been within the possession, custody or power of the party against whom the order is sought, and shows grounds for thinking that those documents are likely to contain material evidence relevant to the proceedings.  The affidavit must also show why it is necessary for there to be discovery of those documents for the fair disposal of proceedings or saving costs.

9. It will be highly objectionable on an application made under O24 r7 if the documents in respect of which discovery is sought are not described with sufficient particularity, or if the affidavit does not set out the deponent’s grounds for believing that those documents are all relevant to the issue or issues to the action in some respect.  This problem becomes acute if an application is made in respect of a wide class of documents, some of which may on the face of it be relevant, but some of which may not.

10. The rule in O24 r1 that Discovery “must relate to matters in question in the action” requires the Court to consider whether the documents sought to be disclosed are relevant to the issues between the plaintiff and the 1^st defendant in this action.  In this context the issue must be an issue that is identified in the pleadings, see Paul’s Model Art GMBH & Co KG v U.T. Limited & Ors, CACV 139/2005.  In that case the Court of Appeal also cautioned that the fact that an issue is raised in the pleadings is “not determinative as to whether it relates to a matter.  Discovery is not required of documents which relate to irrelevant allegation in pleadings which even if substantiated could not affect the result of the action.”  See paragraph 25 of the Judgment.

11. Just because the plaintiff has pleaded that the coach was “arranged” by the 1^st defendant, and that allegation was denied by the 1^st defendant cannot by itself justify discovery of the documents relating to the hiring of the coach from 百寶that conveyed the workers to Ap Lei Chau.

12. The real issue defined by the pleadings is whether the plaintiff was within the scope of his employment with the 1^st defendant when he was assaulted by the 2^nd defendant on the coach on the way to Ap Lei Chau.  The burden of proof on this issue lies with the plaintiff.

13. The plaintiff asserts that since the 1^st defendant has admitted that there were written contracts between the 1^st defendant and百寶 for the years 1994 to 1999, despite the denials of the 1^st defendant, there must be written contracts relating to provision of transport of the workers to Ap Lei Chau up to and including the date of the accident on 6 May 2002.

14. The stance of the 1^st defendant is that this is a fishing exercise.  The evidence from the 1^st defendant’s witnesses alleged that the coach arrangement with 百寶 was terminated in 1999; and the 1^st defendant has disclosed documentary evidence in the form of a Notice given by the 1^st defendant to it’s staff dated 28 May 1999 informing the staff that the coach service arranged by the 1^st defendant would be terminated.  In the circumstances the 1^st defendant submits that the plaintiff has failed to make out a case for the existence of the documents sought.  

15. The termination of provision of free travel for workers to and from Ap Lei Chau from 1^st July 1999 is not disputed by the plaintiff, see paragraph 37 of the plaintiff’s statement dated 28 June 2006. Indeed in that paragraph, the plaintiff accepts that, after that date, the workers themselves would have to pay the employers $180 per month for coach trip to and from Ap Lei Chau.

16. The plaintiff attached to Exhibit “WTW-4” a copy of their “Revised Schedule” of documents sought by way of Summons dated 28 May 2007, but did not make an application to amend the original Summons. I am proceeding with the application as if the Summons was amended, as I cannot see any prejudice to the 1^st defendant.

17. The Revised Schedule of documents sought by the plaintiff

(i)	All written contracts made between the 1st Defendant and 百寶旅遊有限公司(“百寶”) in respect of the arrangement for provision of coaches for ferrying the 1st Defendant’s employees to work for the period from 1994 up to 6th May 2002; and
(ii)	All correspondence and/or written communication and documents exchanged between the 1st Defendant and 百寶 in respect of arrangement for provision of coaches for ferrying the 1st Defendant’s employees to work from 1994 up to 6th May 2002.

18. Mr Wu, the solicitor appearing for the plaintiff conceded that it was not compulsory for staff to use the coach to go to work in Ap Lei Chau.  If the staff had a free choice of how they would go to work, and could choose whether they would take that 百寶coach, or go by public bus, or by taxi if they chose, there can be no basis for saying that riding the百寶 coach to Ap Lei Chau must be a part of the duties of the plaintiff as an employee of the 1^st defendant.

19. On the basis of the concession that the staff of the 1^st defendant were free to decide how they travelled to Ap Lei Chau to work, the relevance of the documents sought falls away.  Those documents are not relevant and cannot shed light on the real issue between the plaintiff and the 1^st defendant.  In the circumstances the documents sought by the plaintiff cannot “relate to any matter in question in the action” under O24 r1.  Put in another way, the documents sought “ relate to irrelevant allegation in pleadings which even if substantiated could not affect the result of the action” in the words the Court of Appeal in the Paul’s Model Art case referred to in paragraph 10 above.

20. What has been said in the preceding paragraphs should be sufficient to dispose of this application for discovery.  However, if I am wrong to make that finding, there are further reasons why the application must fail.

21. The affirmation of Mr Wu merely speculates on the existence that the 1^st defendant is in possession of, or has power or control of the documents sought.  Mr Wu proceeded on the basis that an arrangement that was in place up to 1999 continued after that date, even though the coach journey was no longer free.  There was no prima facie evidence to show that a contract or contracts made between the 1^st defendant and百寶to provide transportation for its workers after 1999 are in existence.  The grounds of Mr Wu’s belief is no more than the belief and acceptance of his lay client’s instructions, and there is no reason to suppose that his client had access to the 1^st defendant’s administrative system or documents relating to the 1^st defendant’s administration as a ground of that belief.

22. As the application is based on nothing more than speculationas to the existence of documents and their relevance, it must be oppressive. See O Company v M Company [1996] 2 Lloyds Rep 347.  In the words of our Court of Appeal in the Paul’s Model Art case paragraph 31 (referred to in paragraph 10 above) the plaintiff cannot simply say to the 1^st defendant “show me your records so that I may check if what you say was correct”.

23. Lastly, the Schedule, whether the original or the Revised version simply does not identify with precision the class of documents required, and is an example of a literal application of the Peruvian Guano principle.  In this regard, I respectfully echo the comments of Aldous J in the case of City of Gotha v Sotheby’s [1998] 1 WLR 114 at page 123 :

“It is important when applications for specific discovery under O24 r7 are made, the documents or classes of documents for which discovery is being sought are clearly and carefully defined.  A deponent of the required affidavit must consider carefully whether he can say on oath that each document or all the documents within a class, have been in the possession, custody or power of the other party, and that all the documents the subject of the application relate to the matters in question.  The rule specifically requires an affidavit in support.  No solicitor should swear an affidavit without being satisfied that the application is not too widely drafted and the opinion he expresses is soundly based.”

24. The duty to be concise and specific is placed on the party applying because of the knock-on effect on the disclosing party.  If the class is too wide, the disclosing party on verifying his List by affidavit will be put at risk of being liable for perjury and contempt in the event his verification turns out to be inaccurate.

25. Therefore, for all the reasons given, the plaintiff’s application for discovery is dismissed.

26. Costs should follow the event, therefore I will make an order nisi that the costs of the application shall be to the 1^st defendant against the plaintiff.  The costs order nisi shall become absolute unless an application is received within 14 days of the handing down of this Ruling.

27. The parties should submit a set of agreed Directions for the setting down for trial of this action within 14 days of the Handing Down of the Ruling.  If the parties are unable to agree such Directions, the parties shall fix a Check List for such Directions from PI Master.