CHU CHING YEE, JEANNY v. ZHOU JIONG

DCCJ4649/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4649 OF 2008

BETWEEN

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D E C I S I O N

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1.  There are three summonses before me today:

(A)  the defendant applies for leave to appeal the order of Master K Lo of 3 December 2008 out of time.

(B)   the defendant asked for leave to amend the defence.  Both these summonses were adjourned to this court by Judge Leung on 19 January 2009.

(C)  the plaintiff’s summons of 30 December 2008 asking for leave to file and serve a reply and defence to counterclaim 28 days after the defendant’s answer to the plaintiff’s request for further and better particulars on the defendant’s defence and counterclaim as disclosed in her letters to the Defendant of 1 December 2008 and 29 December 2008.  This summons was adjourned by Master Clement Lee on 12 January 2009.

2.  In view of the reasons given and the background of these proceedings, I think it is suitable for me to extend time and for the appeal to be heard today.

3.  As to the appeal itself, it is necessary to clarify the basis of the plaintiff’s application by summons on 2 December 2008 before Master Lo on 3 December last year, before one can get to the reason why the order was made and whether the defendant’s appeal should be allowed or not.

4.  The plaintiff’s request for further and better particulars of the Defence from the defendant was made in a letter dated 1 December 2008 to the defendant’s solicitor.  One day after the letter, she took out the summons on 2 December 2008.  The hearing came before Master Lo on 3 December.  The requests for further and better particulars demanded the defendant to disclose (1) the name of the defendant’s legal adviser; (2) the legal advice itself; (3) the lab report; (4) the maker of the lab report.

5.  This 2 December summons was heard on 3 December on that occasion, Master Lo allowed the plaintiff’s summons, i.e. the plaintiff was allowed to file the reply and defence to counterclaim 28 days after the defendant answered the plaintiff’s requests for further and better particulars.  In other words, the defendant has to comply with the request for further and better particulars.

6.  Pursuant to the order and as understood by Mr. Lo (Solicitor for the Defence) at the time and conceded by Mr Lo before Master Lo on 3 December, the defendant’s solicitor supplied a copy of the lab report to the plaintiff disclosing also the name of the lab that prepared the report.  However, the defendant failed to supply the name, or names, of the legal adviser(s) or the legal advice to the plaintiff.

7.  The plaintiff was not happy with the state of the affairs and took out a second summons on 30 December 2008, repeating the request set out in her letter to the defendant on 1 December and a further letter dated 29 December 2008 to the defendant’s solicitor requesting the disclosure of the full lab report instead of a portion of that lab report.

8.  On 9 January 2009, the defendant took out a summons for leave to amend the defence.  This summons and the plaintiff’s 30 December 2008 summons were placed before Master Lee on 12 January 2009.  Master Lee adjourned both summonses to be heard at the same hearing of the appeal when the defendant indicated to the Master that the defendant will take out an application for leave to appeal against Master Lo’s order of 3 December 2008.

9.  The plaintiff’s appeal today is the appeal against Master K. Lo’s order, and it is against the part of the Master’s order granting leave to the plaintiff’s filing of reply and defence to counterclaim 28 days after the defendant answered all of the plaintiff’s requests for further and better particulars.

10.  It must be borne in mind that the plaintiff had never applied to court for an order against the defendant for the supply of further and better particulars.  She had, in fact, skipped the step.  By skipping that step within one day of sending a letter of request for further and better particulars to the defendant’s solicitor, she took out the summons asking for leave for extension of time for her to file a reply and defence to counterclaim until 28 days after her requests for further and better particulars were answered by the defendant.

11.  Up to today, there is no summons or application from the plaintiff for an order from the court for the defendant to supply further and better particulars on the defendant’s defence.  Her requests to the Defendant were by letters of 1 December 2008 and 29 December 2008 that she sent to the defendant’s solicitor one day before she took out a summons for extension of time for her to file a reply and defence to the counterclaim.  There is hardly time for the defendant to comply with the 2 requests before the summonses were taken out for extension of time.  At the hearing before Master Lo on 3 December, the defendant expressed that the report can be disclosed to the plaintiff.

12.  In order for the court to decide if the plaintiff’s summons for time to file and serve a reply and defence to counterclaim should be allowed, the court must first decide if the plaintiff is entitled to those answers in the request.  And since there is no application before court for the requests for further and better particulars to be allowed, there is only an appeal against Master K. Lo’s 3 December order which, in effect, had ordered the defendant to comply with request before the plaintiff would be required to file a reply and defence to counterclaim, the defendant had no choice but to appeal against that order because the defendant is resisting the second part of the request by the plaintiff, namely, the disclosure of the name of the legal adviser and the legal advice itself.

13.  The lab report has been, according to the defendant, supplied to the plaintiff even though the defendant insisted that the request was premature because the stage for discovery in the proceedings has not been reached.  In any event, the defendant claimed that a copy of the report was supplied to the plaintiff soon after 3 December 2008.

14.  The plaintiff, Madam Chu’s argument is that she needed all the information from the defendant before she can file a reply and the defence to counterclaim, and furthermore, the Complaint Against Police Office (CAPO) has accepted her complaint and would be investigating the crimes the plaintiff alleged the defendant to have committed.

15.  As to the other two requests, the supply of the names of the defendant’s legal advisers and the contents of the legal advice, the plaintiff, Madam Chu, claimed that the defendant’s legal advisers and the defendant’s actions may involve illegal or fraudulent conduct, therefore, the defendant is not entitled to claim legal professional privilege.

16.  On this issue, from the evidence supplied by the plaintiff and the reasons given by her, I cannot accept that the allegation or the reasons given are valid, sufficient to displace the defendant’s legal professional privilege.  The sole reason given was that disclosure of the information is required so that the plaintiff can obtain more information to find out if any illegal acts had been committed.  This tantamounted to fishing for evidence.  Discovery should not be used for such a purpose, no one is entitled to be given an opportunity to fish for evidence that she or he did not have.  A mere suspicion without just cause of any crime or tort may have been committed should not be a sufficient cause or reason to displace the other party’s legal professional privilege, a right protected under the constitutional law in Hong Kong.

17.  I would, for the aforesaid reason, not allow the request for such disclosures.  I will set aside Master Lo’s order of 3 December 2008 and replace it with an order that the plaintiff shall file a reply and defence to counterclaim within 14 days hereof.  I grant leave to the defendant to amend the defence within 24 hours because the amendment is a very minor one.

18.  The plaintiff’s request for further and better particulars, which was made by way of her 30 December summons for extension of time to file a reply and defence to counterclaim which in effect is also a request for further and better particulars, this request is dismissed.

19.  The costs of the defendant’s appeal and today’s hearing will be granted to the defendant in any event, to be taxed if not agreed.  All reserved costs and the costs of 3 December 2008 will also be granted to the defendant in any event, to be taxed if not agreed.