LIU HING SANG v. ESTATE OF LI KWAN, DECEASED AND ANOTHER

HCPI 665/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 665 OF 2009

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D E C I S I O N

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I. Introduction

1.  On 20 June 2008, the plaintiff (“Mr Liu”) suffered personal injuries as a result of a traffic accident (“Accident”).  On 16 October 2009, he commenced the present proceedings against the defendant who is now the 1^st defendant.  On 2 March 2010, the Official Solicitor was appointed to represent the 1^st defendant for the sole purpose of accepting service of the Writ of Summons.  On 9 April 2010, leave was granted for Mr Liu to continue the present proceedings in the absence of a person representing the 1^st defendant.  On 7 June 2010, the 2^nd defendant successfully applied to join as a defendant in the present proceedings, and judgment on liability was entered in favour of Mr Liu against the 2^nd defendant leaving damages to be assessed.  Vis-à-vis the 1^st defendant, the issues of both liability and quantum are still at large.

2.  On 8 December 2011, I handed down my Decision in respect of inter alia Mr Liu’s application for leave to serve his own supplemental witness statement, the supplemental witness statement of Mr Cheung Wing Chuen (“Mr Cheung”), and the witness statement of Mr Wong Yiu Kwong (“Mr Wong”) all dated 19 November 2010 (“1^st Decision”).  For easy reference in this Decision, I shall refer to and not repeat the matters canvassed in the 1^st Decision, and I shall also adopt the abbreviations therein.

II. Mr Liu’s pleadings on loss and damages

3.  Mr Liu’s claim for loss of earnings and loss of earning capacity as pleaded in the Statement of Damages filed on 16 October 2009 (“SOD”) have been summarised in paragraphs 2-3 of the 1^st Decision.

4.  In the Revised Statement of Damages filed on 23 February 2012 after the 1^st Decision (“RSOD”), Mr Liu claims he worked as a tour guide for about 8 years before the Accident. He worked for Hong Thai from 3 July 2000 to 31 October 2007, and became a Grade B tour guide in 2007 earning about HK$13,7400.00 per month (including commission from overseas tours) in 2006/2007.  In October 2007 he left Hong Thai, and since 7 April 2008 he worked for Miramar.  During the three-month probation period starting from 7 April 2008 (before he was deployed to escort long haul tours to North America, Europe and/or Australia), he earned about HK$7,235.00 plus commission of about HK$1,200.00 (ie a total sum of HK$8,435.00) per month.

5.  In the RSOD, Mr Liu claims that he applied to join Miramar with the specific intention to work as a long haul tour guide, and but for the Accident he would have become a long haul tour guide by mid-2010.  He further claims that after his probation period he would have earned about HK$20,000.00 to HK$30,000.00 per month initially, but with his good command of the English and putonghua languages he would have become a very successful long haul tour guide with estimated earnings up to about or at least HK$70,000.00 per month about two years later.  After the Accident, Mr Liu lost his ability to resume work as a tour guide.  Even with best effort to adjust to a light duty sedentary job, he would only have been able to earn about HK$3,000.00 to HK$4,000.00 per month.

6.  In the RSOD, Mr Liu claims inter alia:

(a) loss of earnings from the date of the Accident to 19 June 2011 in the sum of HK$2,974,217.50 (ie HK$8,435.00 x 0.5 months + (HK$20,000.00 + HK$70,000.00) ÷ 2 (being average notional monthly earnings) x 24 months + HK$70,000.00 (being notional monthly earnings) x 27 months), but Mr Liu will give credit for such sum already received from Miramar;

(b) future loss of earnings of HK$11,172,000.00 (ie (HK$70,000.00 (being notional future monthly earnings) – HK$3,500.00 (being notional future monthly earnings that Mr Liu could have earned after the Accident) x 12 months x 14);

(c) loss of future provident fund of HK$707,310.87 (ie (HK$2,974,217.50 + HK$11,172,000.00) x 5%);

(d) loss of earning capacity of at least HK$500,000.00.

7.  A comparative summary of Mr Liu’s claims in the SOD and in the RSOD is as follows:

Claim	SOD (HK$)	RSOD (HK$)
Past loss of earnings	645,000.00	2,974,217.50 (received)
Future loss of earnings	4,218,000.00	11,172,000.00
Loss of future provident fund	238,650.00	707,310.87
Loss of earning capacity	250,000.00	500,000.00
Total	5,351,650.00	12,379,310.87

III. Witness statements served on behalf of Mr Liu

8.  In the present proceedings, Mr Liu served the witness statements referred to in paragraphs 9-11 below, and I have summarised the relevant aspects of their contents in paragraphs 8 and 44-49 of the 1^st Decision (save and except for the further matters set out below).

9.  The relevant contents of Mr Liu’s witness statement dated 5 July 2010 and his supplemental witness statement dated 19 November 2010 have been summarised in paragraphs 16 and 21-25 of the 1^st Decision. In addition, Mr Liu’s witness statement states the following:

(a)   In 2000, Mr Liu successfully obtained a tour escort pass issued by the Travel Industry Council of Hong Kong (“TIC”), which required him to attend a 40-hour certificate course for outbound tour escorts and to pass the certificate examination.

(b)   Miramar planned to have Mr Liu escort long haul tours to North America, Europe and Australia, and when he attended the job interview Miramar clearly told him they had plans to train him to become a long haul tour guide to complement their corporate development.

(c)    Each country had its own regulations for tour escorts. For example, if a tour guide wanted to escort tours in Australia, he would have to apply for a tour escort pass in Hong Kong as well as a tour guide licence issued by the Australian authority.

10.  Mr Cheung’s witness statement dated 4 November 2009 and his supplemental witness statement dated 19 November 2009 have been summarised in paragraphs 17 and 26-29 of the 1^st Decision.  Mr Cheung’s supplemental witness statement further states that since 2006 Hong Thai lost 20 odd good tour guides at Grade B level or above to Miramar due to Miramar’s more progressive development strategy.  Miramar absorbed a large number of tour guides from other tour operators to be their long haul tour guides, which policy substantially increased the development and promotion prospects of their tour guides.

11.  Mr Liu also served on the 2^nd defendant the following witness statements:

(a)   Mr Choi’s witness statement dated 3 May 2010 (summarised in paragraph 18 of the 1^st Decision);

(b)   Mr Chow’s witness statement dated 8 April 2010 (summarised in paragraph 19 of the 1^st Decision);

(c)    Mr Tong’s witness statement dated 2 June 2010 (summarised in paragraph 20 of the 1^st Decision);

(d)   Mr Wong’s witness statement dated 19 November 2010 (summarised in paragraphs 30-35 of the 1^st Decision).

IV. Non-party discovery application against Hong Thai

12.  On 24 May 2012, Mr Liu issued a summons against Hong Thai (“Hong Thai Summons”) pursuant to section 42 of the High Court Ordinance Cap.4 (“HCO”) and Order 24 rule 7A(2) of the Rules of the High Court (“RHC”) for non-party discovery, ie seeking an order that (a) Hong Thai or their authorised representative do within 7 days file an affidavit stating whether Hong Thai has in their possession, custody or power 12classes of documents identified in the 1^st and 2^nd columns of the Schedule (“Schedule”) annexed to this Decision (“Classes 1-12” or collectively, “Requested Documents”), and if any such document has been but is no longer in their possession, custody or power, stating when they have parted with such document and what has become of it, and (b) Hong Thai do within 7 days thereafter produce for inspection and permit the 2^nd defendant’s solicitors to take copies and/or make notes of such documents which are in their possession, custody or power.

13.  On 24 May and 28 June 2012, the 2^nd defendant filed the 3^rd and 8^th affidavits of their solicitor Wong Ho Yan (“Ms Wong”) (“Wong 3^rd and 8^th Affidavits”) in support of the Hong Thai Summons.  On 4 June 2012, Hong Thai filed the affidavit of their solicitor Gordon Chan (“Mr Chan”) in opposition (“Chan Affidavit”).

14.  The substantive hearing for argument in respect of the Hong Thai Summons came before me on 7 August 2012 (“Hearing”).  At the Hearing, without objection by Hong Thai, I granted leave for the 2^nd defendant to file and serve Ms Wong’s 9^th affidavit and to rely on such affidavit in support of the Hong Thai Summons.

15.  On 4 August 2012, without prior leave of the court, Hong Thai filed and served the 1^st affidavit of Hong Thai’s manager Lee Wai Fong (“Ms Lee”) (“Lee Affidavit”).  Mr A Cheung, counsel for the 2^nd defendant, objects to the admissibility of such affidavit for the purpose of the Hong Thai Summons. But a careful study of the Lee Affidavit shows that part of its contents is already before the court by way of the Chan Affidavit and/or the correspondence from Hong Thai’s solicitors to the 2^nd defendant’s solicitors, and the rest is in the nature of submissions (rather than factual assertions) which have been canvassed in the written submissions by Mr Yeung, solicitor for Hong Thai.  In the circumstances, I granted retrospective leave for Hong Thai to file and serve the Lee Affidavit, but only allowed Hong Thai to rely on paragraphs 1-8, the 1^st sentence of paragraph 9, the 1^st to 3^rd sentences of paragraph 10, the 1^st to 3^rd sentences of paragraph 11 and paragraph 13 of the Lee Affidavit (ie exclusive of the submission points) for the purpose of the Hong Thai Summons.

16.  Mr A Cheung’s written submissions argue that the witness statement of Serena Ng (“Ms Ng”) dated 25 July 2012, which is annexed to Mr Liu’s 5^th affirmation filed on the same day in answer to the interrogatories served by the 2^nd defendant, is “inadmissible”, or alternatively it should be given no weight since no leave has been granted for Mr Liu to serve such witness statement.  But at the Hearing, Mr Cheung conceded that the admissibility or otherwise of such witness statement at trial is a matter between Mr Liu (rather than Hong Thai) and the 2^nd defendant, and I can refer to the contents of such witness statement for the purpose of the Hong Thai Summons.

17.  As evident from the correspondence between Hong Thai’s solicitors and the 2^nd defendant’s solicitors in June 2012, Mr Yeung’s written submissions and the Lee Affidavit, Hong Thai is willing to disclose and produce some of the Requested Documents as set out in the 3^rd column of items 2-6, 10 and 11(b) in the Schedule (“Unopposed Documents”), claims they do not have some of the Requested Documents as set out in the 3^rd column of items 1, 7-9, 11(a) and 12 in the Schedule (“Non-existent Documents”), and declines to disclose and/or produce the remaining Requested Documents (“Opposed Documents”).

V. Unopposed Documents

18.  In respect of the Unopposed Documents identified in the letter from Hong Thai’s solicitors to the 2^nd defendant’s solicitors dated 29 June 2012 and in the Schedule, Mr Yeung in his oral and written submissions (as confirmed in the Lee Affidavit) says that Hong Thai is willing to file and serve an affidavit within 28 days to disclose and itemise the documents within the description of the Unopposed Documents that are in their possession, custody or power, and to produce such documents to the 2^nd defendant’s solicitors for inspection and permit them to take copies and/or make notes thereof within 7 days thereafter.

VI. Non-existent Documents

19.  Hong Thai claims they do not have or they have destroyed the Non-existent Documents.  Indeed, paragraph 8 of the Lee Affidavit confirms that “Hong Thai does not have these documents”.  Mr A Cheung submits it is unclear from such assertion whether it is within Hong Thai’s “power” to obtain the Non-existent Documents.  In face of such complaint, Mr Yeung confirms that Hong Thai will file and serve an affidavit within 28 days to state that they do not have the Non-existent Documents in their possession, custody or power.

20.  Initially at the Hearing, Mr A Cheung submitted that Hong Thai should further state on affidavit whether any of the Non-existent Documents has been but is no longer in their possession, custody or power, and if so, when they have parted with such document and what has become of it.

21.  But, unlike the provision for inter partes specific discovery under Order 24 rule 7 of the RHC, section 42 of the HCO for non-party discovery provides that the court has power to order a non-party who appears to be likely to have had in his possession, custody or power any documents which are relevant to an issue arising or likely to arise out of that claim “to disclose whether those documents are in his possession, custody or power” only.  In the circumstances, Mr Chan concedes there is no basis for the 2^nd defendant to pursue the request in the above paragraph.

VII. Opposed Documents

22.  In the course of his oral submissions at the Hearing, Mr A Cheung abandoned the application for non-party discovery against Hong Thai in respect of the remaining Opposed Documents under Class 11.

23.  In respect of Class 2, Hong Thai objects to the disclosure of all documents produced by them relating to the programme of training, examination, classification, appraisal, assessment and promotion of both long haul and short haul tour guides (other than Mr Liu) employed by them.  In the course of Mr A Cheung’s oral submissions at the Hearing, he sought leave to limit the scope of the Opposed Documents under Class 2 to the period from 2000 to 31 October 2007. Without objection by Mr Yeung, I granted such leave.  But Mr A Cheung made clear that the 2^nd defendant still insists on discovery of the remaining Opposed Documents under Class 2 in respect all other long haul or short haul tour guides employed by Hong Thai within the specified period.

24.  In the circumstances, I will only discuss below the 2^nd defendant’s case for discovery and Hong Thai’s objections thereto in respect of the remaining Opposed Documents under Classes 2 and 4-6.

25.  In the letters from Hong Thai’s solicitors to Mr Liu’s solicitors dated 22 and 29 June 2012, the Chan Affidavit and Mr Yeung’s written submissions, Hong Thai claims that the 2^nd defendant’s application for non-party discovery of the Opposed Documents is a fishing exercise, and further complains that the Opposed Documents, which are of a general nature and do not concern Mr Liu, are not specified, relevant and/or necessary.

26.  Hong Thai further says that Mr Liu was a Grade B tour guide when he resigned on 31 October 2007 and he did not receive any training for escorting (and he did not escort) long haul tours to destinations outside South East Asia/China, hence Mr Liu was not concerned with long haul tours when he was with Hong Thai and any documents relating to long haul tours to Europe/America are not applicable to him at all.  Hong Thai further argues that although their tour guides are graded according to their performance and attitude from Grade C to Grade A+, such grades are not relevant to tour route allotment or at all since Mr Liu was only allowed to escort tours to South East Asia/China during his employment with Hong Thai.

27.  On the other hand, the 2^nd defendant says that Hong Thai’s assertions are inherently vague and overly simplistic.  Mr A Cheung submits it is fundamentally erroneous for Hong Thai to assume the only issue that falls to be decided at trial is whether Mr Liu would have qualified as a long haul tour guide, and such basic error taints the entirety of Hong Thai’s arguments on the “relevance” of the Opposed Documents.

28.  To put the dispute in context, it is necessary for me to first turn to the information already available in the present proceedings by way of inter partes and non-party discovery, witness statements and answer to interrogatories.

VIII. Other discovery applications

29.  Insofar as it is relevant to the remaining Opposed Documents under Classes 2 and 4-6, by a summons dated 24 May 2012 the 2^nd defendant seeks specific discovery against Mr Liu for inter alia the following documents:

(a)   all tour leader’s reports (including 出團報告，領隊帶團入息記錄，領隊帶團收支報告，領隊完團報告書 and “summary of escort tour report”) prepared by or issued to Mr Liu during his employment with Hong Thai for the last 3 years preceding his departure on 31 October 2007;

(b)   all tour leaders’ reports (including 出團報告，領隊帶團入息記錄，領隊帶團收支報告，領隊完團報告書 and “summary of escort tour report”) prepared by or issued to Mr Liu during the months of April and May 2008;

(c)    all documents in support of Mr Liu’s contention that his monthly earnings would have been HK$20,000.00 to HK$30,000.00 after qualifying as a long haul tour guide with Miramar;

(d)   all documents in support of Mr Liu’s contention that his monthly earnings would have been HK$60,000.00 to HK$80,000.00 two years after qualifying as a long haul tour guide with Miramar.

30.  Pursuant to my order dated 5 June 2012, Mr Liu filed his 4^th affirmation on 7 June 2012 which states inter alia as follows:

(a)   He submitted all tour leader’s reports to Hong Thai immediately after completion of the relevant tours, and has not retained any copy himself. He has never recorded or kept any record of his total annual income in any year when he worked for Hong Thai.

(b)   If he had escorted tours in April/May 2008, he would have submitted all tour leader’s reports to the tour operator after completion of the tours, and he has not retained any copies of such documents.

(c)    He refers to Mr Cheung’s and Mr Wong’s earnings records to support the assertion that had he become a long haul tour guide he would have earned HK$20,000.00 to HK$30,000.00 per month initially.  He also refers to Mr Wong’s and Mr Chow’s earnings records to support the assertion that had he become a long haul tour guide he would have earned HK$60,000.00 to HK$80,000.00 per month eventually.

31.  The Wong 8^th Affidavit complains inter alia that Mr Liu merely (a) exhibits Mr Cheung’s homemade table of earnings, (b) refers to various witness statements made on his behalf, and (c) claims he no longer has the other documents requested by the 2^nd defendant.

32.  On 24 May 2012, Mr Liu also issued non-party discovery applications against Mr Cheung, Mr Chow, Mr Tong, and Mr Wong (“Cheung, Chow, Tong and Wong Summonses”) in respect of inter alia the following classes of documents:

(a)   all contracts of employment/engagement between Mr Cheung and Hong Thai from 1998 to date and between each of Mr Chow, Mr Tong and Mr Wong and Hong Kong-based tour operators from 2008 to date;

(b)   all tour leader’s reports (including 出團報告，領隊帶團入息記錄，領隊帶團收支報告，領隊完團報告書 and “summary of escort tour report”) prepared or received by each of them from 2008 to date;

(c)    all records of overseas commission prepared and received by each of them from 2008 to date;

(d)   all employer’s returns, tax returns, notices of assessment and demand notes for each of them from 2007/2008 to date, and if no such documents exist, confirmation letters to such effect by the Inland Revenue Department (“IRD”).

33.  Pursuant to my order dated 5 June 2012, Mr Cheung filed his affirmation on 8 June 2012 which states inter alia as follows:

(a)   He cannot remember whether he signed any contract of employment with Hong Thai and he does not now have such document in his possession, but Hong Thai would have record if he did sign any such contract.

(b)   When he worked for Hong Thai, he would normally submit to Hong Thai the tour leader’s reports or other information promptly after completion of the relevant tours.  He has not retained any copy of the tour leader’s reports, and only has a summary record of the tours he escorted for the last 2 years as exhibited to his affirmation.  Upon receipt of the Cheung Summons, he has started to retain copies of his tour leader’s reports as exhibited to his affirmation.

(c)    All along he has made detailed record of each tour he escorted in his own notebooks as exhibited to his affirmation (except for a few notebooks which have been lost).

(d)   His income comprised “basic income”, “bonus” and “salary”, and he has made record of overseas commission received since 2008 as exhibited to his affirmation (see also exhibit to his witness statement) and of his total monthly overseas commission in his notebooks as exhibited to his affirmation.

(e)    He exhibits his employers’ returns from 2010 to 2012 (but he has lost those for 2007-2009) and his tax returns, notices of assessment and demand notes from 2007/2008 to 2010/2011.

34.  The Wong 8^th Affidavit complains that Mr Cheung’s records of his income derived from overseas commission were homemade.

35.  On 14 July 2012, Mr Wong filed his affirmation dated 25 June 2012 such that at the adjourned hearing on 31 July 2012 I granted leave for the 2^nd defendant to withdraw the Wong Summons.  Mr Wong’s affirmation states inter alia as follows:

(a)   He does not have record of any contract with Hong Kong-based tour operators or any tour leader’s report.  Usually the tour operators he worked for would issue a 出團通知 to the tour guide prior to the departure of the tour, and such出團通知 would give (i) the amount to be collected from the tour customers for optional activities and (ii) the names/locations of and the duration of stay at the designated shops for the whole tour.

(b)   He exhibits a出團通知 for a Shanghai China Travel International Limited tour that he escorted from Shanghai to Europe in October 2011 which states that each participating tour customer had to pay €35 for a lake cruise (so that he would have earned 80% profit at €28 on the basis that the cost of such activity was €7).  For the optional activity at 鐵力士山峰, his commission was 55% of the fee paid by each participating tour customer. His commission was 50% for the optional activity at 少女峰and the meal for 德國豬手餐.

(c)   He exhibits a 出團通知 for a Shanghai China Travel International Limited tour that he escorted from Shanghai to Germany, Switzerland and Austria which states that the entrance fee for each participating tour customer to 麥琴根購物村 and 哈爾塔特湖區 was €30, but his profit was 100% as he incurred no cost. Further, the fee for 寶馬汽車博物館 and維也納美泉宮was €30 and €40 respectively, and he had to pay €10 for each participating tour customer, so his profit was 66% and 75% respectively.

(d)   He also exhibits a 出團通知 for a tour he escorted from Beijing to Japan and Korea.

(e)   He has not kept any record of the amount (or retained the receipts) of overseas commission he has earned.  But he exhibits a receipt which shows he earned 10% Shop Commission directly received from the shop for a tour customer’s purchase of a Rolex watch in Germany, and a receipt which shows he earned 5% Shop Commission for a tour customer’s purchase of a Jaquar watch in Germany.  In Europe, Shop Commission was usually 10%, but it could be as high as 20% for shops in Munich.  However, for a few brands sold at WEMPE shop in Frankfurt, Shop Commission was recently reduced to 5%.  He also exhibits a tour customer’s tax rebate certificate to show that such customer made an overseas purchase.

(f)    He claims he only recently learned that Mr Liu wanted information about overseas commission, so he deliberately retained a few receipts to show that he earned Shop Commission, but most overseas shops would not issue such receipts.

(g)   The IRD does not have his tax returns for income he earned within Hong Kong as he has not submitted tax returns to the IRD for such income since 2007/2008.  He has never received any notice of assessment or demand note issued by the IRD.

36.  Mr A Cheung complains that Mr Wong’s affirmation essentially states that he has only retained tour reports and receipts after the 2^nd defendant requested for disclosure and production of documents.  As for the commission receipts and the tax rebate certificate disclosed by Mr Wong, Mr A Cheung says they are not a complete record and at best they only indicate how much was spent by 2 separate tour groups.  He argues it is unclear from Mr Wong’s affirmation whether the expenditures shown were/are typical.

37.  Mr Chow did not attend the call-over hearing of the Chow Summons.  Upon enquires made by the 2^nd defendant’s solicitors, Mr Liu’s solicitors informed them by letter dated 22 June 2012 that Mr Chow’s current address was in Sheung Shui, New Territories. When the process server of the 2^nd defendant’s solicitors tried to effect service on Mr Chow at the Sheung Shui address, he was not there but the building caretaker was able to liaise with him by telephone.  The process server inserted the relevant documents into the letterbox of the Sheung Shui address.  Subsequently, the Chow Summons and other relevant documents sent by registered post to the Sheung Shui address were returned unclaimed, and a further attempt to serve such documents at the Sheung Shui address by appointment was unsuccessful as Mr Chow was not there and the building caretaker refused to let the process server insert the documents into the letterbox.

38.  Mr Chow did not attend the adjourned hearing of the Chow Summons on 31 July 2012.  On that day, I ordered that the hearing of the Chow Summons be further adjourned to 18 September 2012, and that the Chow Summons and other relevant documents be served by way of substituted service, namely, by (a) delivering such documents to Mr Liu’s solicitors and (b) sending such documents by prepaid ordinary post addressed to Mr Chow at the Sheung Shui address.

39.  Mr Tong also did not attend the call-over hearing of the Tong Summons. However, he was personally served with the Tong Summons on 27 June 2012.  At the adjourned hearing of the Tong Summons on 31 July 2012, I granted an order in terms of such summons with slight amendments to the descriptions of the classes of documents requested.

40.  Mr A Cheung submits that it is unclear whether Mr Chow and/or Mr Tong are in a position to disclose and/or produce inter alia the documents under Classes 2 and 4-6 now sought from Hong Thai.

IX. Mr Liu’s answer to interrogatories

41.  On 12 April 2012, the 2^nd defendant’s solicitors served interrogatories without order on Mr Liu’s solicitors.  On 26 July 2012, Mr Liu answered such interrogatories by his 5^th affirmation inter alia as follows:

(a)   He was a Grade B1 tour guide before he achieved Grade B2 in about the 5^th year he worked for Hong Thai, and he was still a Grade B2 tour guide when he left Hong Thai.  He did not sit for any examination assessment for the promotion.  A tour guide’s promotion and “考評” were usually based on his length of service and the annual appraisal by his supervisor and the human resources department.  He is not clear about the actual “評級標準、所需的工作、經驗及條件”, but “評核標準基本是按年資計算，按年順序升級，但也會看工作表現”.  He says that Hong Thai would automatically conduct annual appraisal for all employees, and promotion would be considered once a year.

(b)   Hong Thai tour guides could only escort tours to South East Asia before achieving Grade B, but once they achieved Grade B or above they could apply to become long haul tour guides.  “達到B級或以上所帶的團的性質沒有太大分別，只是達到較高級別時，所帶的旅行團的人數會較多”.

(c)    When he achieved Grade B, on many occasions his supervisor Ms Ng invited him to become a long haul tour guide (and he exhibits Ms Ng’s witness statement dated 25 July 2012 for such purpose).  But he felt Hong Thai did not have sufficient long haul tours to satisfy all their tour guides who were entitled to escort long haul tours. Had he become a long haul tour guide with Hong Thai, his income would have been unstable since he would not have enough long haul tours and at the same time he would have missed out on short haul tours.  So he did not intend to become a long haul tour guide for Hong Thai, but planned to become one for other tour operators with more long haul tours, eg Miramar.

(d)   His basic salary, service fee, commission and additional tips before and after he achieved Grade B depended on the number of tour customers in the tour group and the number of tour customers who made purchases and participated in optional activities.

(e)    The 2^nd defendant should make enquiries with Hong Thai for a breakdown of his earnings.  He has mentioned HK$13,000.00 per month as his average monthly earnings from 2006 to 2007, which includes service fee earned in Hong Kong as well as Activity, Shop and Souvenir Commission and additional tips earned overseas that need not be reported to the IRD. Hong Thai should have submitted employer’s returns for his income earned in Hong Kong, and the information as disclosed in Hong Thai’s letter dated 3 July 2008 is correct.  He does not have any records or details of other commission earned for the period from 2006 to 2007.

(f)     He did not escort any tours and only did administrative work at Hong Thai from July to October 2007 because he was unwell with cough and stomach pain.

(g)   From the time he left Hong Thai on 31 October 2007 to 7 April 2008, he worked as a freelance tour guide.  He recalls that he acted as freelance tour guide for Sincerity Travel and escorted tours to South East Asia and other destinations for Macau-based tour operators.

(h)   He has clarified in his supplemental witness statement that his average monthly income at Miramar was HK$7,235.00 plus commission of HK$1,200.00.  He agrees that the information provided by Miramar in DCEC486/2010 in respect of his income earned in Hong Kong is correct, but such information does not include his Activity, Shop and Souvenir Commission and the additional tips he earned overseas.  The reference to “tips/incentives” in the documents disclosed by Miramar does not include overseas commission earned by him.

(i)     He understands that tour guides should report in Miramar’s earnings record income earned in Hong Kong but not Activity, Shop and Souvenir Commission and additional tips earned overseas.

(j)     The overseas commission he earned in April/May 2008 need not be reported to the IRD, and he does not have any record of his earnings from escorting tours in April/May 2008.  He claims that Miramar has deliberately failed to disclose such records.  Whilst the Yau Affirmation admits that Miramar once had his tour leader’s reports and records of his earnings for escorting tours, only a blank form tour leader’s report but not any record of his earnings for escorting tours has been disclosed.

(k)   Before the departure of a tour, Miramar would issue a memo to the tour guide stating the amount he should collect from the tour customers for each optional activity (which amount includes Activity Commission set at a ratio to the amount to be collected from the tour customer based on TIC’s guidelines as was usual in the trade).  His Activity Commission (which depended on the number of tour customers who participated in the optional activities) was reflected in his tour leader’s reports, so Miramar should know how much Activity Commission he earned.

(l)     But the Shop and Souvenir Commission and the additional tips he received need not be reported, and a tour guide was only required to state in the tour leader’s report that he brought the tour customers to which shop and how many customers entered such shop.  The Shop Commission would be paid directly to the tour guide through the local guide and not through the Hong Kong tour operator.  He is aware of arrangements for sharing commission between designated shops and Hong Kong tour operators, which explains why prior to the departure of the tours Hong Kong tour operators will notify their tour guides to bring tour customers to the designated shops.

(m)   Europe and North America do not require tour guides to be licensed, but Australia does.  Normally, the local tour operator provides training, and the Australian consulate arranges licensing examination (which is only required since 2008).  He has not taken the examination, and as a result of the Accident he has lost the opportunity to escort or to receive training for escorting long haul tours.  He cannot even renew his tour escort pass because the TIC requires tour guides to be physically fit before issuing such pass.

(n)   When he attended the job interview at Miramar’s head office, the female examiner whose name he has forgotten told him Miramar’s main operation was in long haul tours and Miramar would arrange for him to escort long haul tours if he was employed.  He told the examiner he was willing to escort long haul tours, but was not told whether he had to pass any examination/assessment before he could escort long haul tours.

(o)   When he joined Miramar he was already a Grade B tour guide.  He did not know whether he would have grade promotion after he finished his probation.

(p)   During his first month with Miramar, he only stayed at a branch office to familiarise himself with the company’s internal operations. It was only in the second month that he was arranged to escort tours to South East Asia and China.  He knew he had to complete his three-month probation period before receiving any training for becoming a long haul tour guide.

(q)   He learned of a long haul tour guide’s monthly income of HK$20,000.00 to HK$30,000.00 from long haul tour guides working at Miramar and in the trade.  As regards the average income of long haul tour guides, he refers to the witness statements of Mr Wong, Mr Tong and Mr Chow.

42.  Mr A Cheung complains that Mr Liu claims to have no knowledge of the criteria by which Hong Thai’s tour guides were promoted (save for unparticularised references to work performance and appraisal reports).  Mr A Cheung further complains that, contrary to Mr Liu’s witness statement which states that each country has its own tour guide licensing requirements and which cites Australia as an example, Mr Liu’s 5^th affirmation now asserts that only Australia has licensing requirements for long haul tour guides.  Nevertheless, such affirmation confirms that (a) Hong Thai has a practice of producing appraisal reports for their tour guides, (b) Australia has a licensing regime for long haul tour guides which involves examinations (and according to Mr A Cheung, which must involve criteria known either publicly or to the travel industry generally), and (c) the Activity Commission level is set according to TIC’s guidelines (and hence, Mr A Cheung argues, cannot be trade secrets as far as Hong Thai is concerned).

43.  Ms Ng’s witness statement as annexed to Mr Liu’s 5^th affirmation states inter alia as follows:

(a)   She joined Hong Thai in 2001, and when she met Mr Liu in 2006/2007 she was a branch officer.  At that time, Mr Liu was a tour guide who escorted tours to South East Asia and China.

(b)   She recalls there were at least 2 occasions when she personally invited Mr Liu to let her recommend him for “評核面試” to escort long haul tours to Europe, America and Australia because of his mature experience and reliable attitude as a tour guide.  Further, with his good command of the English language and his fluency in putonghua, he was suitable for escorting long haul tours (especially for Mainland Chinese tour customers) to Europe, America and Australia.  But Mr Liu declined, and she felt he did so because he thought Hong Thai did not have sufficient long haul tours and it would not be to his benefit to become a long haul tour guide for Hong Thai.  She felt Mr Liu wanted to work for another tour operator that specialised in long haul tours.

(c)    After she left Hong Thai in June 2007, she learned that Mr Liu also left in about October 2007.  He still worked as a tour guide, and in April 2008 joined Miramar.  She is aware that Miramar focuses on long haul tours, and in 2007/2008 10 odd to 20 odd short haul Hong Kong tour guides (like Mr Liu) joined Miramar to work as long haul tour guides.  She believes that but for the Accident Mr Liu would have performed well and would soon have become a long haul tour guide for Miramar.

X. Information from DCEC Action

44.  By the DCEC Summons in the DCEC Action, Mr Liu applied for specific discovery of the documents identified in paragraph 6 of the 1^st Decision.  Pursuant to the order of HH Judge ST Poon dated 8 December 2010, Miramar filed the Yau Affirmation the contents of which have been summarised in paragraph 11 of the 1^st Decision.

XI. Legal principles

45.  Section 42 of the HCO provides as follows:

“ (1) On the application, in accordance with rules of court, of a party to any proceedings in which a claim is made, the Court of First Instance shall, in such circumstances as may be specified in the rules, have power to order a person who is not a party to the proceedings and who appears to the Court of First Instance to be likely to have or to have had in his possession, custody or power any documents which are relevant to an issue arising out of that claim –

(a) to disclose whether those documents are in his possession, custody or power; and;

(b) to produce such of those documents as are in his possession, custody or power to the applicant or, on such conditions as may be specified in the order-

(i) to the applicant’s legal advisers;

(ii) to the applicant's legal advisers and any medical or other professional adviser of the applicant; or

(iii) if the applicant has no legal adviser, to any medical or other professional adviser of the applicant.

(2) On the application, in accordance with rules of court, of a party to any such proceedings as are referred to in subsection (1), the Court of First Instance shall, in such circumstances as may be specified in the rules, have power to make an order providing for any one or more of the following matters –

(a) the inspection, photographing, preservation, custody and detention of property which is not the property of, or in the possession of, any party to the proceedings but which is the subject matter of the proceedings or as to which any question arises in the proceedings;

(b) the taking of samples of any such property as is mentioned in paragraph (a) and the carrying out of any experiment on or with any such property.

……”

46.  Order 27 rule 7A(3)(b) of the RHC provides that a summons for disclosure of documents under section 42(1) of the HCO shall be supported by affidavit which must specify or describe the documents in respect of which the order is sought and show, if practicable by reference to any pleading served or intended to be served in the proceedings, that the documents are relevant to an issue arising or likely to arise in the proceedings and that the person against whom the order is sought is likely to have or have had them in his possession, custody or power.

47.  In Tullett Prebon (Hong Kong) Limited v Chan Yeung Fong Nick & ors HCA 2197/2009, To J (unreported, 9 June 2011) at paras.64-65, counsel agreed that the court has a discretion under section 42 of the HCO to make an order under Order 24 rule 7A of the RHC if the following threshold requirements were met:

(a)   the non-party must be likely to have the documents in his possession, custody or power (see section 42(1) of the HCO and Order 24 rule 7A(3)(b) of the RHC);

(b)   the documents sought must be relevant to an issue arising or likely to arise in the proceedings (see section 42(1) of the HCO and Order 24 rule 7A(3)(b) of the RHC);

(c)    the order must be necessary either for fairly disposing of the matter or saving costs (see Order 24 rule 8(2) of the RHC).

48.  In respect of the second requirement, the test for relevance is the same Peruvian Guano test that is applied for other types of discovery under Order 24 of the RHC (see Chan Tam-sze & ors v Hip Hing Construction Co Ltd & ors [1990] 1 HKLR 473 and Cheung Kai Wing v Mok Sheung Shum trading as Mok Sum Kee & ors CACV 20/1993 (unreported, 15 July 1993) para.16).  In Chan Tam-sze, Bokhary J (as he then was) said at p.476 as follows:

“…… It is in the interests of justice that – subject to proper safeguards of course – all material having a significant bearing on the truth be available to litigants and their advisors for them to place the same before the Court. It is true that discovery under the section is against non-parties. But, unlike discovery under the rule which is automatic, discovery under the section arises only if ordered by the Court in the exercise of its discretion. It is in this consideration, and not in any strained construction of the formula employed, that the non-parties are to find their protection. ……”

49.  This is echoed in Wong Siu Hing & anor (administratrices of the estate of Yu Loi Lung, deceased) v Lo Che Keung & anor [1991] 1 HKC 412, 418, in which Kaplan J said that in his judgment masters and judges could be relied upon to see that the jurisdiction contained under Order 24 rule 7A of the RHC would not be abused, and they would only make orders in appropriate cases:

“The notes to O 24 r 7A (Supreme Court Practice 1991 p 449) makes it clear that:

The court has a discretion to decline to make an order which would be unnecessary or oppressive or not in the interests of justice or injurious to the public interest … the power of the court to order a non-party to produce relevant documents is not fettered, except as provided by the relevant provisions of statute and the rules, and is to be exercised as to further the proper administration of justice.”

(see also Tse Lai Yin Lily & ors v Incorporated Owners of Albert House & ors [1999] 1 HKC 386)

50.  In respect of the third requirement, the power of the court to order non-party discovery is a discretionary one, and such order will not be made unless the discovery is necessary under Order 24 rule 8(2) of the RHC.  Such provision states that no order for the disclosure of documents shall be made under section 42 of the HCO unless the court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.  These two considerations are to be read disjunctively.  This means that even if the document requested is relevant, the discovery must be refused if it is not necessary either for disposing fairly of the cause or matter or for saving costs.  It is for the party objecting to the order for discovery to satisfy the court that the discovery is not necessary or not necessary at the stage the cause or matter has reached (see Hong Kong Civil Procedure 2012 Vol.1 para.24/8/1 at p.559).

51.  The following propositions are relevant to the question of necessity under Order 24 rule 8(2) of the RHC (see Tullet Prebon (Hong Kong) Limited at paras.77 and 79):

(a)   discovery orders against non-parties are exceptional;

(b)  non-party discovery should not be used as a fishing or speculative exercise for documents;

(c)   non-party discovery should not be oppressive, eg by the terms being too wide.

52.  To J cited with approval the decision by Hartmann JA, sitting as an additional judge of the Court of First Instance, in SMSE v KL (No.2) (approved on appeal in [2009] 5 HKLRD 770).  In considering whether to order non-party discovery, he adopted the approach of Hartmann JA who took into account the following factors when he dismissed an application to set aside a subpaoena duces tecum:

“63. … First, how important is the information to the issues? Second, has the applicant taken appropriate steps to obtain the information within the proceedings before seeking disclosure from the third party? Third, would it be sufficient for the court simply to draw adverse inferences on the basis that the party from whom the information was sought within the proceedings has failed to supply their information? Fourth, what is the nature of the relationship, if any, between the parties to the proceedings and the third party? Fifth, if disclosure is necessary and proportionate wheel [sic] the editing of documents protect private information?”

53.  There was dispute in Tullett Prebon (Hong Kong) Limited at para.66 as to whether the document to be discovered has to be one which a witness would be compelled to produce at trial under a subpoena duces tecum, but To J held that Order 27 rule 7A(6)(b) of the RHC can only be construed as preserving the non-party’s right to privilege.

54.  If the documents sought meet the criteria of relevance and necessity and are sufficiently identified so that there can be no doubt as to what is being requested, discovery ought to be ordered even if the documents are in some instances described by reference to classes or groups of documents rather than individually (see Cheung Kai Wing at para.24 and Tullet Prebon (Hong Kong) Limited at paras.79-80).

55.  But, as To J reminded in Tullet Prebon (Hong Kong) Limited at para.82, whilst the court has power to order a non-party to disclose relevant documents which meet the Peruvian Guano test, it has no power to order disclosure of documents which do not:

“82. …… That principle cannot be circumvented by including the relevant documents in a class which also includes documents which do not meet the Peruvian Guano test. Where disclosure of a class of documents is sought and if some documents of that class are shown to be irrelevant, it must necessarily follow that the class of documents sought to be disclosed may not be relevant and ought not be disclosed. The Court of Appeal in Novartis Pharmaceuticals clearly said that the court had no power to make an order under CPR 31.17 in respect of a class of documents if there were documents within the class that were not relevant. This principle was emphatically affirmed by the Court of Appeal in Three Rivers District Council. In my view, that principle is also applicable to non-party discovery under Order 24 rule 7A of RHC.

83. That said, the test of relevance is, in a way, slightly relaxed if documents are sought to be discovered as a class. In determining relevance of a document in a class of documents, each document must be read in the context as a member of the class of documents and not just in isolation. A document considered as irrelevant when viewed individually may nevertheless be regarded as relevant if viewed as a member of the class of documents. So long as each document thus read, individually or as a member of the class, meet the Peruvian Guano test, then it is immaterial that some of the documents in the event do not support the case of the party seeking discovery or adversely affect the case of his opponent. This is just the “may not must” point stressed by Brett LJ in the Peruvian Guano test.

  84.     Thus, the principles distilled from Novartis Pharmaceuticals and Three Rivers District Council as applicable to non-party discovery under Order 24 rule 7A of RHC are: firstly, basically each document of a class of documents sought to be discovered must be relevant in the Peruvian Guano sense; secondly, relevance is to be determined by viewing the documents individually or as a member of the class of documents; and thirdly, provided that all the documents in the class of documents are relevant, it is immaterial that some turn out in the event not to support the case of the applicant or adversely affect the case of his opponent.”

56.  It is trite that confidentiality is no bar to discovery unless the information sought is privileged (see Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1974] ACa405, 429 and Hong Kong Civil Procedure 2012 Vol.1 para.24/5/38 at p.550), but it is a factor to be considered in the exercise of the court’s discretion.  It is noted that a party who obtains discovery may only use the documents disclosed for the purpose of conducting the legal proceedings, and there is an implied undertaking by the disclosee not to use the documents for any collateral or ulterior purpose (see Tullett Prebon (Hong Kong) Limited at para.18).

57.  Mr Yeung refers to the unreported Irish case of Koger Inc & anor v James O’Donnell & ors [2009] IEHC 385 (31 July 2009) which concerns a claim by the plaintiffs against their former employees/contractors who set up a new company and allegedly launched a software product that rivalled the plaintiffs’ product.  The plaintiffs complained that the defendants used confidential information relating to the plaintiffs’ business in marketing such software product, but the defendants denied such claim.  The plaintiffs sought discovery relating to the design, content, source code and development history of the defendants’ software product.  The parties agreed that virtually all such documents were discoverable, but the defendants argued that the confidential material, once discovered, should be seen by the experts and/or legal advisers but not to be made available to the plaintiffs’ specified officer(s).  Kelly J referred to the relevant case law and concluded that such restriction was exceptional.  It “can be ordered but it is unusual. If such a restriction is to apply, there must be exceptional circumstances to justify it”. In the end, acknowledging that it was a finely balanced case, the learned judge held that the interest of justice required limited disclosure to the plaintiffs’ legal advisers and to a nominated officer of the plaintiffs under strict conditions.

58.  Mr Yeung further cites Abena Simba-Tola v Trustees of Elizabeth Fry Hostel & anor [2001] EWCA Civ 1371 (30 July 2011).  In that case, the appellant claimed she suffered racial discrimination from members of staff and other residents at a hostel, and applied for inter partes disclosure of the personal files of certain residents that were maintained by the respondents even though a log book of the hostel recording the personal information of each resident for certain periods before, during and after the appellant’s residence had already been disclosed.  The English Court of Appeal held that the personal files would be unlikely to add to the information already available, and special disclosure was refused.

59.  In dealing with discovery of confidential documents, Keene LJ noted that the leading authority on the pre-CPR position was Science Research Council v Nasse [1980] AC 1028 in which Lord Wilberforce said at p.1066 as follows:

“ 4. The ultimate test …… is whether discovery is necessary for disposing fairly of the proceedings. If it is, then discovery must be ordered notwithstanding confidentiality. But where the court is impressed with the need to preserve confidentiality in a particular case, it will consider carefully whether the necessary information has been or can be obtained by other means, not involving a breach of confidence.

  5.       In order to reach a conclusion whether discovery is necessary notwithstanding confidentiality the tribunal should inspect the documents.  It will naturally consider whether justice can be done by special measures such as ‘covering up’ substituting anonymous references for specific names, or, in rare cases, hearing in camera.”

60.  Keene LJ said the post-CPR approach is to reduce the previous scale of discovery of documents, and the court is to determine whether disclosure and inspection need to be ordered in light of the overriding objectives which require cases to be dealt with justly, “but that includes, so far as practicable, saving expense and dealing with the case in ways which are proportionate to the issues and to what is at stake.  Proportionality is an important principle in the area of disclosure as one can readily see from the expressed reference to it in Part 31.3(2).  In accordance with that principle, the court, in exercising its discretion under Part 31 may properly take into account the fact that the document sought would provide no additional information or no significant amount of additional information beyond that already available to the other party and to the court.  It would not be proportionate to order the disclosure and inspection of documents which, in so far as they are relevant at all, very largely duplicate what is already available.”

61.  In my view, the principles elicited from Science Research Council are similar to those summarised by To J in Tullett Prebon (Hong Kong) Limited (see paragraphs 51-52 above), and reflect the position in Hong Kong.  I agree with Mr Cheung that the current English position as described by Keene LJ in Abena Simba-Tola is different from the local position since Part 31 of the CPR is not replicated in the post-CJR RHC.  The local test of “relevance” for non-party discovery is still the Peruvian Guano test, but I accept (and as Mr Cheung conceded in his oral submissions at the Hearing) that the operation of Order 24 rule 7A of the RHC must now be viewed through the prism of the underlying objectives in Order 1A of the RHC, which include “to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings”.

62.  I need not consider Kroger Inc in any detail because it is limited to discussion on whether restrictions should be placed on the disclosure of admittedly discoverable materials.  As will be seen below, the issue in the present case is whether the remaining Opposed Documents under Classes 2 and 4-6 are discoverable.

XII. Issues

63.  In deciding whether the remaining Opposed Documents are relevant to the issues arising or likely to arise in the present proceedings, it is necessary to turn to the SOD and/or the RSOD and the issues on the quantum of damages to be litigated.

64.  Mr Liu’s case as evident from the RSOD is that he was a highly successful tour guide who but for the Accident would have become a long haul tour guide escorting tours to Europe, North America and Australia.  Further, there is no material before me to contradict the following primary or background facts, ie that Mr Liu left Hong Thai in October 2007, joined Miramar in April 2008, and suffered the Accident during his three-month probation with Miramar.  Such primary or background facts are supported by Mr Liu’s and other witness statements (including Ms Ng’s witness statement) served on Mr Liu’s behalf. Indeed, Mr A Cheung at the Hearing does not seek to dispute such primary or background facts for the purpose of the Hong Thai Summons.

65.  On this basis, the Wong 3^rd Affidavit says that Mr Liu’s “past career development and earnings as a tour leader with Hong Thai and Miramar, and his likely future career development and earnings with Miramar, are in issue in the present case” (my emphasis), and the Wong 8^th Affidavit describes the likely issues to be as follows:

(a)   Mr Liu’s career development at Hong Thai and the reasons for his departure from Hong Thai (in particular, whether his departure was related to his long-term prospects as a tour guide whether at Hong Thai or elsewhere);

(b)   the training and qualification requirements for long haul tour guides (and whether it would have been likely for Mr Liu to meet such requirements but for the Accident);

(c)    Mr Liu’s likely working life as a long haul tour guide but for the Accident;

(d)   Mr Liu’s likely earnings and working life as a short haul tour guide in the event the court rejects the contention that he would have qualified as a long haul tour guide.

66.  I need not be concerned with Mr Liu’s past career development and earnings as a tour guide for Hong Thai and the reasons for his departure from Hong Thai because Hong Thai is willing to disclose the Unopposed Documents under Classes 2 and 4-6 relating to Mr Liu.

67.  Mr A Cheung submits that the remaining Opposed Documents under Classes 2 and 4-6 are relevant to the other issues set out in paragraph 65(b)-(d) above because there is significant fluctuation in Mr Liu’s account of his likely earnings but for the Accident and the assertions in various witness statements regarding the earnings of tour guides.  The Wong 8^th Affidavit claims that such wide variation ranges from HK$20,000.00 per month (see the SOD) to HK$100,000.00 per tour (see Mr Chow’s witness statement):

(a)   The SOD avers and Mr Liu’s witness statement says that but for the Accident he would have been able to escort long haul tours to North America, Europe and Australia, and would have earned HK$20,000.00 to HK$30,000.00 per month after his probation.

(b)   The SOD avers and Mr Liu’s witness statement says he would have earned HK60,000.00-HK$80,000.00 per month and similarly the RSOD avers that he would have earned HK$70,000.00 per month 2 years after his probation.

(c)    Mr Cheung’s witness statement says that the annual income of long haul tour guides exceeded that of Grade A+ tour guides, and their monthly income was about HK$40,000.00.

(d)   Mr Choi’s witness statements says that according to his experience the monthly income of a Hong Thai Grade B+ or Grade A+ short haul tour guide was normally HK$15,000.00- HK$20,000.00 per month, and the average monthly income of a long haul tour guide was about HK$40,000.00;

(e)    Mr Tong’s witness statement says his average monthly income as a long haul tour guide was HK$80,000.00-HK$100,000.00, which mostly comprised overseas commission.

(f)     Mr Chow’s witness statement says a long haul tour guide could on average earn HK$50,000.00-HK$60,000.00 or even up to HK$100,000.00 for each tour, and such income was largely derived from commission received as a result of overseas expenditure by the tour customers.

(g)   Mr Wong’s witness statement says that a long haul tour guide speaking average English and putonghua could on average earn HK$60,000.00-HK$100,000.00 per month in the booming Mainland China and Hong Kong tourism trade.

68.  Mr A Cheung further submits that the remaining Opposed Documents under Classes 2 and 4-6 are required because the various witness statements served by Mr Liu give different accounts of the qualifications required for long haul tour guides and of their earnings and working life, yet there is (i) no evidence as to what the qualification requirements are, (ii) only a bald assertion by Mr Tong that long haul tour guides could normally work until about 60 years, and (iii) absence of non-homemade documents relating to the earnings of long haul tour guides:

(a)   Mr Liu’s witness statement alleges that each country has its own regulations governing tour guides, and he needs a licence from, say, Australian authorities before he is permitted to escort tours to Australia.

(b)   Mr Cheung’s and Mr Choi’s witness statements say that under Hong Thai’s promotion structure, tour guides of Grade B or above could apply to become long haul tour guide trainees upon satisfactory work performance and passing an English proficiency test, and after 1-3 years of traineeship in escorting long haul tours they could then become long haul tour guides.

(c)    Mr Cheung’s and Mr Choi’s witness statements say that Miramar had a more progressive policy of attracting tour guides from other tour operators which greatly increased the promotion prospects of their tour guides.

(d)   Mr Tong’s witness statement says that he became a long haul tour guide after several years working as a tour guide, and long haul tour guides could normally work until about 60 years.

(e)    Mr Chow’s witness statement says that tour guides employed by tour operators that focused on long haul tours would normally be promoted to become long haul tour guides after working for several years as tour guides, and if there were unfamiliar destinations, such tour guides would only need to attend internal courses that introduce the sights at such destinations or to join study tours to such destinations before being allowed to escort tours on such route.

(f)     Mr Liu’s and Mr Cheung’s witness statements and supplemental witness statements describe various heads of tour guides’ income.

69.  Mr A Cheung also submits that the following extracts from the 1^st Decision also describe the issues that arise or are likely to arise in the present proceedings:

“ 8. Mr Liu’s 3^rd affirmation …… says that the composition of a tourist guide’s earnings was rather complicated, and since he did not retain the relevant documents he had to adduce witness evidence from himself and/or his colleagues working in the same trade.

……

44. In the [SOD], Mr Liu claims damages for pre-trial loss of earnings, future loss of earnings and loss of earning capacity. In Lai Jianxing v Sakoma (HK) Limited & ors HCPI 757/2009 (unreported, 9 September 2011), Mr Recorder A Ho, SC said “[it] is a well-settled principle that pre-trial loss has to be established as a matter of probability, but calculation of future loss can take possibilities into account: Charlesworth & Percy on Negligence, 12^th edition, para 5-113” (at para.40).

45. In the present case, as regards pre-trial loss, it is incumbent on Mr Liu to prove on a balance of probabilities that he would have become a long haul tour guide and the timing of such change. As regards future loss, quantification depends upon future uncertain events, eg whether Mr Liu’s income would have increased during the future years, whether but for the Accident he might have worked as a long haul tour guide, etc. Future prospects are notoriously difficult to assess, but it is the function of the trial judge to decide whether the available evidence discloses a substantial or significant chance (which could be less than likely) of such event materialising, and if so, such contingency should be taken into account for the purpose of the assessment.

……

49. It is Mr Liu’s case as evident from his witness statement and supplemental witness statement that the income of tour guides is not amenable to documentary proof by simple production of their tax returns/assessments since it was unlikely that income generated overseas would be included. Secondly, the income of tour guides comprised of the 6 heads described in paragraph 7 above, so collation of information and calculation in relation to earnings may be more complicated. There is therefore an understandable need for witness evidence to explain the composition of income of tour guides. Thirdly, since Mr Liu was still under probation at Miramar when the Accident happened, there is no direct factual evidence as to the full scope of his work and his earnings as a full-time employed tour guide had he been able to complete his probation, so he has to depend on evidence from other factual witnesses as to the earnings of a full-time employed short haul tourist guide. Fourthly, in relation to the future years, Mr Liu has alluded to promises allegedly made by Miramar to train him to work as a long haul tourist guide after probation (which is disputed by Miramar), and there is the vexed question of his future work prospects but for the Accident. Again, witness evidence as to the nature of work and earnings of a long haul tourist guide will be relevant to the disputed issues.

......

  59.     …… In respect of the claim for loss of future earnings, the court has to consider what work Mr Liu could have undertaken in the future years but for the Accident.  If there is a position which Mr Liu might probably have taken up but for the Accident in light of available factual matrix, including his abilities, the market, the job demands, his inclination, etc, then, in my view, evidence in respect of such job and the corresponding earnings may well be relevant.  At this stage, I cannot say that but for the Accident a full-time freelance long haul tourist guide is so unlikely a future job for Mr Liu that evidence in relation thereto ought to be excluded with resulting rejection of Mr Wong’s witness statement.  I agree that in many personal injury cases potential future jobs but for the accident can be easily established by applying a good dose of common sense to the factual matrix, and the corresponding earnings can be proved by, say, government statistics.  But in the particular circumstances of the present case, the intricacies of computation of the earnings of a freelance long haul tourist guide are, in my view, deserving of a witness statement from Mr Wong, who is the only one who has current experience as a full-time freelance long haul tourist guide whilst both Mr Tong and Mr Chow are part-time long haul tourist guides.”

70.  Mr A Cheung submits that the dearth of documents relevant to the aforesaid issues leads inexorably to the conclusion that Hong Thai should disclose and produce the remaining Opposed Documents under Classes 2 and 4-6.  I now turn to Class 2 to see whether it is so.

XIII. Remaining Opposed Documents under Class 2

71.  Mr A Cheung refers to Mr Liu’s witness statement which suggests that tour operators train and assess their tour guides, so Hong Thai as a tour operator should have the remaining Opposed Documents under Class 2, ie all the documents produced by Hong Thai relating to the programme of training, examination, classification, appraisal, assessment and promotion of both long haul and short haul tour guides (other than Mr Liu) employed by Hong Thai, in their possession, custody or power.

72.  First of all, I am unable to see the relevance of documents under Class 2 in respect of the programme of training, examination, classification, appraisal, assessment and promotion of short haul tour guides employed by Hong Thai other than Mr Liu.  

73.  I note that Mr Liu was already a short haul tour guide and had been so for the 7 years he was at Hong Thai, and that Hong Thai is willing to disclose the documents under Class 2 relating to Mr Liu that are in their possession, custody or power.  The programme of training, examination, classification, appraisal, assessment and promotion for other tour guides over the period from 2000 to 2007 has no material relevance when documents as to Mr Liu’s own programme of training, examination, classification, appraisal, assessment and promotion is to be discovered under Class 2.

74.  Further, Mr Liu had left Hong Thai for almost 8 months and had joined Miramar for about 2 months before the Accident happened. Mr Liu claims he resigned from Hong Thai, but whether he left of his accord or not it is plainly a conscious decision (whether by Mr Liu as he claims or by Hong Thai if Mr Liu’s reason for his departure is rejected) to cease being an employed tour guide at Hong Thai.  It is not part of Mr Liu’s case (which case the 2^nd defendant has to answer) that he would have any future career with Hong Thai either as an employed short haul or long haul tour guide.  

75.  I have no hesitation in concluding that the remaining Opposed Documents sought under Class 2 relating to short haul tour guides employed by Hong Thai other than Mr Liu are not relevant or material.

76.  Secondly, Mr A Cheung claims that the remaining Opposed Documents under Class 2 are relevant to the training and qualification requirements for long haul tour guides, which goes to the question whether Mr Liu would have qualified as a long haul tour guide.  Hence, such documents are necessary for fairly disposing of the cause or matter or for saving costs.  On the other hand, Mr Yeung submits that such documents are not relevant to Mr Liu’s alleged prospects as a long haul tour guide.

77.  I am not persuaded by Mr A Cheung’s argument.  It is Mr Liu’s pleaded case (see paragraph 2 of the 1^st Decision and paragraph 5 above) which is echoed in his witness statement and Mr Cheung’s witness statement (see paragraphs 16(b) and 17(d) and (f)-(g) of the 1^st Decision and paragraphs 9(b) and 10 above) and in his 5^th affirmation in answer to interrogatories (see paragraph 41(c) and (n) above) that (a) despite invitation by his supervisor he declined to become an employed long haul tour guide for Hong Thai and preferred to become a long haul tour guide for other tour operators (such as Miramar) which had more long haul tours, (b) he left Hong Thai because he wanted to become a long haul tour guide but not for Hong Thai, (c) Miramar had a more progressive development strategy of attracting tour guides from other tour operators to become their long haul tour guides, (d) Miramar’s policy substantially increased the development and promotion prospects of their tour guides, (e) ever since his job interview Miramar had plans for him to escort long haul tours, (f) Mr Liu joined Miramar with a view to work as a long haul tour guide for Miramar, and (g) but for the Accident he would have become a long haul tour guide in mid-2010 (ie after his probation with Miramar).

78.  As Ms Wong recognised in the Wong 3^rd Affidavit (see paragraph 65 above), an issue or likely issue in the present proceedings will be Mr Liu’s likely future career development and earnings with Miramar. It is not any part of Mr Liu’s case that he would have become an employed long haul tour guide with Hong Thai.  By the time of the Accident, he had left Hong Thai for about 8 months.  In the circumstances, I am not persuaded that Hong Thai’s own programme for training, examination, classification, appraisal, assessment and promotion of their employed tour guides is relevant to any issue or likely issue in the present proceedings.  Further, the material before the court suggests that different tour operators may adopt different programmes for training, examination, classification, appraisal, assessment and promotion of their tour guides.  Indeed, it has been suggested that Miramar has a more progressive policy than Hong Thai which increased the promotional prospects of Miramar’s tour guides.  On such basis, I am unable to see how investigation into Hong Thai’s internal programme of training, examination, classification, appraisal, assessment and promotion of long haul tour guides will assist in assessing Mr Liu’s contention that he would have become a long haul tour guide for Miramar in mid-2010.

79.  It is true that the Yau Affirmation says that Mr Liu was a Class B short haul tour guide during his employment with Miramar before the Accident, and that Miramar did not mention to or promise Mr Liu that he would escort or receive training to escort long haul tours after his probation (see paragraphs 11(j) and (k)-(m) of the 1^st Decision).  This arguably contradicts Mr Liu’s case, but such dispute does not turn on Hong Thai’s own programme of training, examination, classification, appraisal, assessment and promotion of long haul or short haul tour guides.

80.  Mr A Cheung submits that the 2^nd defendant has difficulties in seeking non-party discovery against Miramar for documents as to their programme of training, examination, classification, appraisal, assessment and promotion of short haul and long haul tour guides for reasons elaborated at earlier case management hearings attended by the parties to the present proceedings.  However, the 2^nd defendant has not filed any affidavit evidence or in any way notified Hong Thai about such difficulties. In the circumstances, Mr A Cheung acknowledged at the Hearing that it would be inappropriate for the 2^nd defendant to rely on any such difficulties.

81.  Mr A Cheung submits on the strength of Lyell v Kennedy (No 1) (1883) 8 AC 217 that a party is not debarred from seeking non-party discovery even though it may have other means of obtaining such discovery from, say, the other party within the proceedings or from another more appropriate third party.  Whilst I have no quarrel with such assertion as a general and broad proposition subject to (a) considerations of necessity and relevance as to the documents sought and (b) legal principles discussed in Part XI above, the key question here is not so much as whether the 2^nd defendant could have sought similar documents from other sources but whether the remaining Opposed Documents under Class 2 are relevant to the issues or likely issues in the present proceedings as well as necessary either for disposing fairly of the cause or matter or for saving costs.  In my view, they are not.

82.  Thirdly, Mr Chan submits it is not for Hong Thai to confine disclosure under Class 2 to documents relating to Mr Liu.  Mr Cheung refers to the 1^st Decision which notes that Mr Liu’s future earnings depend on a wide variety of uncertain future events, “eg becoming a freelance tour guide”.

83.  As I have explained in paragraph 59 of the 1^st Decision (see paragraph 69 above), I cannot say that but for the Accident a full-time freelance long haul tourist guide is so unlikely a future job for Mr Liu that evidence in relation thereto ought to be excluded, and I therefore granted leave for Mr Liu to serve Mr Wong’s witness statement.  However, that does not mean that the remaining Opposed Documents under Class 2 is relevant to such issue.  The documents sought relate to Hong Thai’s own programme of training, examination, classification, appraisal, assessment and promotion of “tour leaders employed by Hong Thai, for both long-haul and short-haul tour leaders” (my emphasis).  According to Mr Wong who worked as a freelance tour guide, he would escort 15 overseas (mostly long haul) tours a year for various tour operators (see paragraph 30 of the 1^st Decision).  Mr Wong also says that freelance tour guides could work flexibly for different tour operators to earn more income and to escort tours at times that suited them (see paragraph 35 of the 1^st Decision).  I cannot see the remaining Opposed Documents under Class 2 being relevant to freelance tour guides who can work for any tour operator and outside the employment and promotion structure of Hong Thai.

84.  Further, if freelance tour guides can work for various tour operators, it immediately raises a question as to why non-party discovery in respect of the remaining Opposed Documents under Class 2, which is said to be relevant to the issue of whether Mr Liu would have become a freelance tour guide, is sought from Hong Thai (when Mr Liu has actually left Hong Thai to work as a tour guide elsewhere) and not from any other Hong Kong-based tour operator.

85.  Indeed, at the Hearing Mr A Cheung conceded that the documents relating to the work and earnings of freelance tour guides are more likely to be in possession, custody or power of such freelance tour guides rather than in the hands of the tour operators for whom they work.  This begs the question why it is relevant and/or necessary for the 2^nd defendant to seek discovery of the remaining Opposed Documents under Class 2 from Hong Thai.  Mr A Cheung is constrained to admit that the application has been made because Mr Liu’s supplemental witness statement says that Hong Thai is ISO certified and has more complete records.  But this is no answer to the legal hurdles of relevance and necessity discussed above, and in any event Mr Liu says Miramar also has similar documents.

86.  Fourthly, Mr Yeung refers to the Chan Affidavit and argues that the remaining Opposed Documents under Class 2 which relate to all Hong Thai’s employed tour guides (other than Mr Liu) are “in general confidential information concerning Hong Thai and do not concern [Mr Liu]”.  Mr Yeung submits that the 2^nd defendant’s request is oppressive as it is not truly material, and it invades the confidence of others for a disproportionately small benefit, so it should be refused.

87.  In response thereto, the Wong 8^th Affidavit complains that the Chan Affidavit fails to set out the basis for the assertion of confidentiality.  Mr A Cheung submits that the 2^nd defendant’s assertion of confidentiality is insufficient because (a) the 2^nd defendant not being a competitor in the same trade as Hong Thai has no interest in any collateral use or disclosure of any confidential information in the Class 2 documents and is in any event bound by the implied undertaking, (b) Mr Liu whose case is that he can no longer work as a tour guide is also not a competitor, and (c) no reason as to why the 2^nd defendant’s implied undertaking will not be sufficient has been put forward by Hong Thai.

88.  I note that the description of the remaining Opposed Documents under Class 2 is not limited to documents that reflect Hong Thai’s general policy and/or criteria for the training, examination, classification, appraisal, assessment and promotion of their employed tour guides.  It covers all documents produced by Hong Thai relating to the programme of training, examination, classification, appraisal, assessment and promotion of their employed short haul and long haul tour guides.  This is a wide-ranging ranging request that not only comprises documents relating to Hong Thai’s general policy and criteria on the subject but also all documents (which may include, say, meeting minutes, internal memoranda and/or discussion papers at management level, if any) relating to internal discussion on and/or formulation of such general policy and criteria as well as all documents relating to training, performance, assessment, evaluation and promotion that are personal to each and every tour guide in Hong Thai’s employ from 2000 to 2007.  At the Hearing, Mr A Cheung maintained that the disclosure of such documents that necessarily contain personal information of all such Hong Thai tour guides is required.

89.  I have no doubt such documents contain confidential personal information.  Whilst it is not an absolute bar to disclosure, I bear in mind that non-party discovery is exceptional and should not be oppressive, eg by the terms or scope being too wide (see paragraph 51 above).  I also take note that whilst the court has power to order discovery of relevant documents it has no power to order disclosure of documents which do not meet the Peruvian Guano test so that if some documents within the class of documents sought to be discovered from a non-party, whether viewed individually or as a member of such class, are shown to be irrelevant then the class of documents sought may not be relevant and ought not be disclosed (see paragraph 55 above).

90.  Since Hong Thai is willing to disclose and produce the Unopposed Documents under Class 2 being all documents produced by Hong Thai relating to the programme of training, examination, classification, appraisal, assessment and promotion of Mr Liu during his time with Hong Thai (and he was a Grade B+ or B2 tour guide when he left) (see paragraph 18(d) of the 1^st Decision and paragraph 41(a) above), I cannot understand why it will be relevant and/or necessary to have sight of similar documents in relation to other short haul tour guides employed by Hong Thai.  After all, the correspondence from Hong Thai’s solicitors and in the Lee Affidavit explain that Hong Thai’s tour guides were allotted grades based on their own “service attitude/performance”, a point echoed by Mr Liu in his 5^th affirmation which states that promotion depended upon inter alia length of service, annual appraisal and work performance (see paragraph 41(a) above). It seems hardly relevant to consider the length of service, service attitude, work performance and supervisor appraisal which are personal to other tour guides employed by Hong Thai.

91.  Further, the period covered by Class 2 is up to the time of Mr Liu’s departure from Hong Thai.  Given that Hong Thai is willing to disclose and produce the Unoppposed Documents relating to Mr Liu under Class 2, similar documents in respect of other short haul tour guides employed by Hong Thai over the same period when Mr Liu was employed by Hong Thai is plainly irrelevant.

92.  In all the circumstances, the class of documents is too wide and unnecessarily encroach on personal information of third parties which is not relevant to the issues at hand.  I also find that the documents sought are not necessary for fairly disposing of the cause or matter or for saving costs.  I dismiss the 2^nd defendant’s application for the remaining Opposed Documents under Class 2.

XIV. Remaining Opposed Documents under Classes 4-6

93.  The remaining Opposed Documents under Classes 4-6 refer to all documents showing the tour routes that “Grade B” (for Class 4), “Grade A” (Class 5) and “Grade A+” (for Class 6) tour guides employed by Hong Thai are permitted to lead other than documents that show the tour routes which Mr Liu was permitted to lead during his employment with Hong Thai.

94.  The Wong 3^rd Affidavit states that Hong Thai should have the documents in Classes 4-6 in their possession, custody or power since (a) the RSOD and Mr Liu’s witness statement and supplemental witness statement suggest tour guides were classified into grades, and (b) Mr Cheung’s witness statement says that he was a “Grade A+” tour guide and that Hong Thai only permitted tour guides of a certain grade to apply to escort long haul tours.

95.  First of all, I note there is no limit as to the time period for the documents sought under Classes 4-6.  The 2^nd defendant’s application requires Hong Thai to produce all documents within the description of Classes 4-6 from the time Hong Thai established their classification of Grades B, A and A+ for their employed tour guides up to the present.  No justification has been shown for requesting the historical documents under Classes 4-6 for, say, the period before Mr Liu joined Hong Thai in 2000.  This is particularly onerous in respect of Classes 5-6 when Mr Liu admits he had not reached Grade A or Grade A+ when he left Hong Thai on 31 October 2007.

96.  Secondly, in respect of Class 4, according to the Chan Affidavit, when Mr Liu left Hong Thai, he was a Grade B tour guide and permitted to escort tours to South East Asia/China only.  In fact, this is also Mr Liu’s case.  Since Hong Thai is prepared to disclose documents to show the tour routes which Mr Liu was permitted to lead during his employment with Hong Thai, I do not consider it is either relevant or necessary to have sight of documents in relation to the tour routes which other Grade B tour guides employed by Hong Thai were permitted to lead for the period from 2000 to 2007 (ie during Mr Liu’s employment with Hong Thai).  Even if other Grade B tour guides might have escorted tours to other destinations, the reality is that Mr Liu only escorted tours to South East Asia/China.

97.  For the period after 31 October 2007 up to June 2008, Mr Liu worked as freelance tour guide for Sincerity Travel and other Macau-based tour operators escorting tours to South East Asia and other destinations, and then later as a short haul tour guide for Miramar (see paragraph 41(g) above).  I cannot see how records of the tour routes which Hong Thai permitted their other employed Grade B tour guides to lead during such period would have any relevance.  

98.  As for the period after the date of the Accident, since Mr Liu left Hong Thai (whether of his own accord as he claims or otherwise), his future employed career as a tour guide would not have been with Hong Thai, and I cannot see how Hong Thai has allotted or will allot tour routes to their employed tour guides, whether of Grade B, Grade A and/or Grade A+, will be relevant and/or necessary.

99.  Thirdly, Mr A Cheung submits that the remaining Opposed Documents under Classes 4-6, ie the tour routes allotted to Grade B, Grade A and Grade A+ tour guides employed by Hong Thai other than Mr Liu, are relevant to the issue as to what Mr Liu would likely have earned as a long haul tour guide or (if his allegation that he would have become a long haul tour guide but for the Accident is rejected) as a short haul tour guide, and in the absence of other non-homemade documentary evidence in support of his assertions as to the earnings of long haul or short haul tour guides such documents are necessary for fairly disposing of the cause or matter or for saving costs.

100.  However, I am not satisfied that the 2^nd defendant has established an arguable or sufficient basis to justify the correlation (i) between the tour routes allotted by Hong Thai to their employed tour guides and the grades achieved by such tour guides, and (ii) between the allotted tour routes and the income of Hong Thai’s employed tour guides.  Although Mr Liu says that tour guides of Grade B or above at Hong Thai can apply to become long haul tour guides (see paragraph 41(b) above), the materials before me suggests that tour guides at Grade B, Grade A and/or Grade A+ level can be both long haul or short haul tour guides (ie they may be assigned different tour routes):

(a)   Mr Cheung says in his witness statement that although he was a Class A+ tour guide he was only responsible for escorting tours to South East Asia and China (see paragraph 17(b) of the 1^st Decision), and the annual income of long haul tour guides would exceed that of Grade A+ tour guides (see paragraph 17(e) of the 1^st Decicion and paragraph 67(c) above);

(b)   Mr Cheung explains in his supplemental witness statement that he did not apply to become a long haul tour guide because his English proficiency was not satisfactory (see paragraph 28 of the 1^st Decision);

(c)    Mr Choi says in his witness statement that a short haul Grade B+ or Grade A+ tour guide would normally earn HK$15,000.00 to HK$20,000.00 per month, and a long haul tour guide’s average monthly income was about HK$40,000.00 (see paragraph 18(e) of the 1^st Decision and paragraph 67(d) above);

(d)   Mr Liu says in his 5^th affirmation that “達到B級或以上所帶的團的性質沒有太大分別，只是達到較高級別時，所帶的旅行團的人數會較多” (see paragraph 41(b) above);

(e)    Mr Liu says in his 5^th affirmation that his income as a tour guide depended on the number of tour customers in the tour group and the number of tour customers who made purchases and participated in optional activities (see paragraph 41(d) above);

(f)     the Lee Affidavit states that Hong Thai’s tour guides were graded from Grade C to Grade A+ according to their service attitude/work performance and not according to the tour routes they were permitted to lead.

101.  When pressed on this point at the Hearing, Mr Cheung submitted that the 2^nd defendant seeks non-party discovery against Hong Thai under Classes 4-6 because they do not know whether there is any such correlation.  But on the basis of the available materials, I am unable to see how documents showing the tour routes of Hong Thai’s Grade B, Grade A and/or Grade A+ tour guides will be relevant to the issue as to what Mr Liu would likely have earned as a long haul or short haul tour guide, and it is not permissible for the 2^nd defendant to fish for documentary evidence without any substantial basis.

102.  Anyway, I agree with the Chan Affidavit which says the tour routes that Hong Thai has allotted or allots to their employed tour guides other than Mr Liu are irrelevant to either Mr Liu’s notional future income or prospects of becoming a long haul tour guide.  For example, notwithstanding Mr Cheung’s qualification as a Grade A+ tour guide, the tour routes he is permitted to escort were/are limited to South East Asia/China because of his own personal reason (ie lack of proficiency in the English language), which has no relevance to Mr Liu who is said to be a good English speaker.

103.  Fourthly, the Wong 8^th Affidavit also says that since Mr Liu was still on probation with Miramar at the time of the Accident, such documents are likely to provide the closest useful comparator.

104.  I disagree. For the reasons set out in paragraphs 74-78 above, the relevant comparator in respect of Mr Liu’s case that he would have become a long haul tour guide for Miramar in mid-2010 (see paragraph 65 above) would be the earnings of comparable tour guides working for Miramar, especially when the materials before me suggest that Miramar’s corporate focus was on long haul tours and had a more progressive policy to attract tour guides.  If Mr Liu’s case that he would have become a long haul tour guide for Miramar is rejected, his alternative case is that he would have continued as a short haul tour guide after his probation at Miramar.  In such circumstances, the relevant comparable in relation to earnings would be short haul tour guides at Miramar.  Whilst the 2^nd defendant suggests there are difficulties for them in seeking non-party discovery against Miramar, it does not follow that the remaining Opposed Documents under Classes 4-6 then becomes relevant or necessary.  After all, Mr Liu has left Hong Thai, worked as a freelance tour guide and joined Miramar before the Accident.  Whether Mr Liu did so of his own accord for the purpose of becoming a long haul tour guide for another tour operator as he alleges or otherwise, it is his case that he no longer look towards Hong Thai for his future career as a tour guide.  The Chan Affidavit adds that Hong Thai’s restrictions of tour routes (if any) can only apply to their employed tour guides, but at the time of the Accident Mr Liu was no longer employed by Hong Thai.

105.  Fifthly, Mr A Cheung submits that Hong Thai has adopted an erroneously narrow view of the issues arising or likely to arise at trial, and it is not for Hong Thai to confine disclosure under Classes 4-6 to documents which only involve Mr Liu when the 1^st Decision held that the work of a freelance long haul tour guide is not so unlikely a future job for Mr Liu that evidence in relation thereto ought to be excluded, and Mr Liu has been granted leave to serve Mr Wong’s witness statement that deals with the earnings of a freelance long haul tour guide.

106.  However, the remaining Opposed Documents sought to be disclosed under Classes 4-6 are documents showing the tour routes allotted to Grade B, Grade A and Grade A+ tour guides employed by Hong Thai.  There is nothing before me (and nothing in Mr Wong’s witness statement) to suggest that freelance long haul tour guides are classified into grades.  Further, I cannot see how the tour routes allotted to employed tour guides will have any bearing on the tour routes and/or earnings of freelance tour guides who work for different tour operators.

107.  Sixthly, I note the Chan Affidavit states that tour routes are ever-changing.  It is common sense that the popularity or otherwise of tourist destinations will change over the years.  It is also noted there is no limit in the time period in respect of the documents sought to be disclosed (see paragraph 95 above).  I am not persuaded that disclosure of documents in respect of all Hong Thai tour routes for all of their employed tour guides other than Mr Liu over all time will be material.

108.  Even though I agree with Mr A Cheung there is insufficient basis to support Mr Yeung’s suggestion that the documents as to the tour routes contain confidential information, I find the remaining Opposed Documents under Classes 4-6 to be neither relevant to the issues arising or likely to arise in the present proceedings nor necessary for fairly disposing of the cause or matter or for saving costs, and the application for non-party discovery of such documents must fall to be dismissed.

XV. Conclusion

109.  I therefore grant the following orders:

(a)   Hong Thai do within 28 days from today, ie on or before 28 September 2012, file and serve on the 2^nd defendant an affidavit by their authorised representative (i) confirming that they have the Unopposed Documents in their possession, custody or power, (ii) disclosing and itemising the Unopposed Documents that are within their possession, custody or power, and (iii) confirming that Hong Thai does not have the Non-existent Documents in their possession, custody or power;

(b)   Hong Thai do within 7 days thereafter, ie on or before 5 October 2012, produce the Unopposed Documents for inspection by the 2^nd defendant’s solicitors and permit them to take copies and/or make notes of such documents;

(c)    save as aforesaid, the Hong Thai Summons is dismissed.

110.  I also grant a costs order nisi that:

(a)   the 2^nd defendant do pay Hong Thai’s costs of the Hong Thai Summons (including all costs reserved if any and the costs of the 2^nd defendant’s application to amend the Hong Thai Summons in respect of the description of Class 2 (see paragraph 23 above)) and for compliance with the order in the above paragraph to be taxed if not agreed;

(b)   the 2^nd defendant’s costs in respect of the Hong Thai Summons (save and except for all costs and occasioned by the 2^nd defendant’s application under the Hong Thai Summons for non-party discovery of the Opposed Documents including the documents under Class 11 and the documents under Class 2 outside the period from 2000 to 31 October 2007) be costs in the cause between Mr Liu and the 2^nd defendant;

(c)    there be no order as to costs in respect of Hong Thai’s application for leave to serve the Lee Affidavit.

111.  In respect of the costs order nisi in (c) of the above paragraph, neither Hong Thai nor the 2^nd defendant fully got what they have asked for.  I only allowed Hong Thai to rely on part and not the whole of the Lee Affidavit.  I also did not accede to the 2^nd defendant’s suggestion to rule that the whole of the Lee Affidavit to be inadmissible for the purpose of the Hong Thai Summons.  I consider the costs order nisi in (c) of the above paragraph to be a fair order in all the circumstances.  In fact, very little time was taken up at the Hearing in respect of this application, and the contents of the Lee Affidavit cannot in any way be said to have taken the 2^nd defendant by surprise.

Representation:

Schedule