KAO LEE & YIP (a firm) v. DONALD KOO HOI-YAN AND OTHERS

HCA8847/1993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.8847 OF 1993

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REASONS FOR DECISION

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The summonses before the court

1. There are three summonses before the court :

(1) The plaintiff's summons for specific discovery dated 3 December 2001.

(2) The defendants' summons under RHC, Order 81, rule 2 dated 25 January 2002.

(3) The plaintiff's summons for interrogatories dated 1 February 2002.

2. Save for the question of costs, the first two summonses were no longer relevant by the time the hearing took place before me on 26 February 2002, leaving therefore the interrogatories summons as being the only live one.

3. At the conclusion of argument, I ordered as follows in respect of the summonses :

(1) On the summons for specific discovery, I made no order as to costs.

(2) On the summons under RHC, Order 81, rule 2, I ordered that the costs were to be to the defendants payable by the plaintiff in any event, such costs to be taxed if not agreed.

(3) I dismissed the plaintiff's summons for interrogatories with costs to the defendants payable by the plaintiff in any event, such costs to be taxed if not agreed.

4. I now give the reasons for these decisions.

The summons for interrogatories

5. By this summons, the plaintiff seeks an order that the defendants answer the interrogatories annexed thereto. They are in two parts : the interrogatories directed against the 1st defendant and those directed against the 2nd to 6th defendants.

6. It should first be noted that the 1st defendant has already in the past had occasion to answer interrogatories : see the 4th affirmation of the 1st defendant dated 23 November 1995.

7. Before dealing with the interrogatories themselves, I should first set out the applicable principles governing applications of this kind :

(1) The general principle is that interrogatories are admissible where they go to support the applicant's case or destroy the opponent's : see Hong Kong Civil Procedure 2002 at paragraph 26/4/7. The width of this general principle is similar to the Peruvian Guano principles governing discovery of documents.

(2) However, this only goes to the question of admissibility. Whether a court will in its discretion allow interrogatories is entirely a different matter. Too often in the past, there has been a tendency to order interrogatories once admissibility is demonstrated. This is wrong.

(3) In the exercise of its discretion, the court must bear in mind that interrogatories will be ordered only where they are necessary either for disposing fairly of the cause or matter, or for saving costs : cf RHC, Order 26, rule 1(1); Hong Kong Civil Procedure 2002 at paragraph 26/4/11. This is the key consideration going to the exercise of discretion.

(4) The particular factors that a court will take into account in deciding whether or not to exercise its discretion are well-known : see Lee Nui Foon v. Ocean Park Corporation (No.2) [1995] 2 HKC 395; Hong Kong Civil Procedure 2002 at paragraphs 26/4/5 to 26/4/34. It is not necessary for me to repeat these principles at length.

(5) I would, however, draw special attention to the case of Det Danske Hedeselskabet v. KDM International plc [1994] 2 Lloyds 534. There, Colman J referred to various considerations (or "yardsticks" as he termed them) for the court to bear in mind when considering the question of interrogatories : see page 537 (col.1). I set out one of these considerations in full :

" Fifthly, requests for information ascertainable by cross-examination at the trial are inappropriate unless the party questioning can establish that it is essential for the proper preparation of his case that such information is made available to him before trial, in the sense that if the matter is left until cross-examination at the trial that party will, or probably will be irremediably prejudiced in his conduct of the trial or the trial may be unduly interrupted or otherwise disorangised by the late emergence of the information."

(6) The administering of interrogatories is not for the purpose of enabling a party to indulge in some sort of deposition-taking exercise or to enable him to have a "dry run" in cross-examination against the other side prior to trial. As I have already said, the key consideration is the factor of necessity referred to the RHC, Order 26, rule 1(1).

8. In the present case, I declined to make the order sought by the plaintiff for the following reasons :

(1) In relation to most, if not all, of the interrogatories sought, whether against the 1st defendant or against the other defendants, these involved matters that could be elicited during cross-examination at trial. No case has been made out by the plaintiff that it will be prejudiced, much less irremediably so, or that other serious consequences may result, if answers to these interrogatories are not given.

(2) I am also particularly conscious of the fact that this request for interrogatories came at the time when both parties were busy making final preparations for trial (the trial, with 10 days reserved, is fixed to begin on 22 April 2002). I agree with Mr John Bleach SC that to make the defendants have to answer lengthy interrogatories (57 against the 1st defendant, 18 against the 2nd to 6th defendants) is an unwelcome distraction at least and a unnecessary burden at worst. The necessity of these interrogatories do not, in my view, justify the oppression as it would cause to the defendants.

(3) Further, some of the interrogatories sought are of marginal relevance, such that they do not in my view justify an order to be made at this stage. For example, a large part of the interrogatories directed against the 1st defendant concerns minute details of the advice that the 1st defendant gave to the Bank of China. It will be remembered that one of the issues pleaded by the plaintiff in its Re-Re-Amended Statement of Claim is the advice that the 1st defendant gave to the Bank of China in the setting up of the Bank of China Legal Services Centre. The nature of the advice that the 1st defendant allegedly gave to the Bank of China is pleaded in the Statement of Claim. Quite apart from issues of privilege which the defendants now seek to raise as regards this advice (although this is not pleaded in the Re-Amended Defence), I am yet to be persuaded that such minute details of the advice given to the Bank of China by the 1st defendant are relevant to the issues that have ultimately to be decided. I may be persuaded otherwise at trial as to the question of relevance but for the time being, the relevance of these interrogatories is not such as to compel an order to be made in relation to them.

(4) I do not overlook the fact either that the answers to some of the interrogatories have already been provided in affidavits filed in this action, as Mr Bleach has demonstrated. In a case where there are numerous affidavits and witness statements already in existence, not to mention interrogatories already administered and provided earlier, it seems to me unnecessary to order the defendants, at this late stage, to provide yet more information.

9. In these circumstances, I decline to exercise my discretion to order the provision of these interrogatories. It follows that the summons should be dismissed with costs.

Costs

10. The costs of the summonses under RHC, Order 81, rule 2 and for interrogatories follow the event.

11. As for the costs of the plaintiff's summons for specific discovery, it seemed to me that the plaintiff has in part succeeded and in part failed as well. It is therefore fair that there be no order as to costs.