LU CHENG TE RAYMOND v. YEH SHING HANG KEVIN ARTHUR

HCMP 2109/2021

[2022] HKCFI 503

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2109 OF 2021

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DECISION

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Introduction

1.  By originating summons filed on 14 December 2021, the plaintiff applies for pre-action discovery against the defendant.  In the originating summons, the plaintiff expressly relies on section 41 of the High Court Ordinance, Cap 4. 

2.  The plaintiff seeks disclosure of three sets of information or records:

(1)  The identity “of the masked individual driving a grey private passenger motor vehicle with registration number [number omitted], in forward driving mode and suddenly reversing in reverse driving mode, into the direction of the Plaintiff, between approximately 8:33 am, HKT, to approximately 8:34 am, HKT, on 3 November 2020, in the ground floor carpark area of [a residential building in] Happy Valley, and also recognised by the Plaintiff to be the same person sitting on one of the two chairs underneath one of the … Closed Circuit television (“CCTV”)  cameras, near the ground floor front gates of [the residential building], on Saturday 24 April 2021, at approximately 10:50 am, HKT”;

(2)  the mailing or residential address of the masked individual; and

(3)  “any documents or records, that are likely to have or to have had in his possession, custody or power, whether in electronic or written form, of communication between the Defendant and the masked person … from the period of 1 August 2020 to 16 June 2021, referring to the Plaintiff, and/or the occupants at the Plaintiff’s place of residence, at [address omitted]; or in relation to water leakage from [another flat of the building], into the place of residence of the Plaintiff [address omitted] as referred to implicitly in an email from Mandy Wong, of C P Property Management Limited, 6 - 8 Harbour Road, Wanchai, Hong Kong, on 22 October 2019”.

3.  I shall refer to the masked individual, the motor vehicle and the residential building identified in the above extracts as “the masked individual”, “the vehicle” and “the building” respectively. 

4.  The plaintiff has filed four affidavits in support of his application.  The defendant has filed an affirmation opposing the application on 28 January 2022. 

5.  Today’s hearing is the first hearing of the originating summons. 

6.  Both the plaintiff and the defendant appear in person.

7.  At today’s hearing, the defendant informed the court that he had sent his affirmation to the plaintiff by registered post on 28 January 2022, ie the date on which he filed it with the court.  The plaintiff confirmed to the court that he had received a notification of registered mail but he had not collected it.  In short, the plaintiff has not reviewed the defendant’s opposing affirmation.

8.  Given that the application is a straightforward one and with a view to dealing with it in an expeditious manner, I gave parties two options as to how to deal with the application.  First, I could adjourn the originating summons to another date so that the plaintiff could review the opposing affirmation and decide whether to file a reply affidavit.  The originating summons would then be dealt with substantively at a future date. 

9.  The second option would be for parties to proceed with substantive argument today.  But the defendant would not rely on his opposing affirmation in the course of his submissions.  Hence there would be no need for the plaintiff to review it or to file any reply evidence.

10.  Both the plaintiff and the defendant elected the second option.  The defendant has specifically confirmed that he would not rely on his own affirmation when opposing the application. 

11.  Given the stance of the parties, I proceeded to hear submissions, without reference to the defendant’s opposing affirmation.

12.  Both the plaintiff and the defendant are residents of the building.  The defendant is the chairman of the management committee of its incorporated owners. 

13.  As part of the introduction, I should also mention that there was a previous pre-action discovery application made by the plaintiff against the defendant last year in HCMP 612/2021.  The application was refused.  See the decision of K Yeung J in [2021] HKCFI 2686.  It would appear that that application related to the same alleged incident on 3 November 2020 involving the masked individual and the vehicle in the building.  On that occasion, the plaintiff sought CCTV footage of the incident.  There arises an immediate question as to why the plaintiff did not make the present application in those proceedings.  I shall come back to this aspect of the case shortly.

Ground of the application

14.  The plaintiff has filed and served a total of four supporting affidavits within a space of 10 days.  This is not acceptable. Unless there is any good reason, an applicant should put together his evidence properly when he takes out an application.  He should file his affidavit or affidavits in one go when he makes the application.  On this occasion, however, given that no issue is taken with this by the defendant, I am prepared to take into account all the four affidavits filed by the plaintiff. 

15.  The content of the plaintiff’s affidavits is not readily comprehensible.  The drafting is convoluted.  The documents are repetitious and at times incoherent.  The text is occasionally interspersed with paragraphs which are apparently irrelevant.  These include, eg, a reference to a hearing held in Melbourne, Australia in March 2019 and an online article published in the Australian media in August 2020.  Where the plaintiff repeats allegations in subsequent affidavits, some of the details are changed. As a result of all these problems, it is difficult to follow through the content. 

16.  Doing the best I can, it appears from the affidavits that the plaintiff intends to pursue an action in relation to two incidents.  The first incident is the event which allegedly took place on 3 November 2020.  The second incident took place on 24 April 2021.  He claims damages in the sum of $30,000,000 (in one affidavit)  and $26,000,000 (in subsequent affidavits). 

17.  The first incident involves the plaintiff’s encounter with the defendant and the masked individual when the latter were in the vehicle in the morning of 3 November 2020 at the ground floor carpark of the building.  The defendant was identified as the passenger and the masked individual the driver.  The plaintiff described what happened in his affidavit filed on 28 December 2021 as follows:

“17. On 3 November 2020, while the Plaintiff was working on documents including a page of Land Registry of Hong Kong instrument completed by a lawyer or a law firm, in relation to the Plaintiff’s place of residence at [the building], and a car parking space leased to an Owner / occupant of [the building], and a HSBC HK$5000.00 personal cheque at [the building’s] semi-circular ground floor lift lobby common area guest’s table, to be hand-delivered into the ground floor lobby letterbox of Mr Lam Wai-Kuen (a resident of [address omitted]), the former treasurer of “The Incorporated Owners of [the building]” and a current member of the Management Committee of “The Incorporated Owners of [the building]” since around 12 December 2019, the Plaintiff was suddenly approached from behind.

18. This was almost immediately after the Plaintiff had sent an iPhone XR photograph of the OTIS HK Elevators Circular notice displayed at the ground floor lobby, dated 8 October 2020, to [Mr Lam], on his mobile number, [number omitted], at 8:32 am, HKT, whilst … Lift number 3 was undergoing repair / upgrade. The plaintiff then took a series of five photographs with his iPhone XR, the first of the five iPhone XR photographs was sent to the mobile number of [Mr Lam], via text messaging. The other iPhone XR photographs were regarding the grey private passenger van and its masked driver. The Hong Kong Police Report number for 3 November 2020 is T HKI RN 20021077.

19. The Plaintiff believes that the Defendant … is in fact a passenger of the grey private passenger van with the registration number [number omitted] in the morning of 3 November 2020, between around 8:35 to 9:15 am, HKT, when the grey passenger van [number omitted] sped away from the … ground floor carpark through the front gates of [the building], and as surmised in the accompanying “The reasons for naming the Defendant in the intended Writ for damages for HK$26,000,000.00 (HKD$26 million)”.” (underline added)

18.  The plaintiff described the second incident in the same affidavit as follows:

“On 24 April 2021, after the Plaintiff had taken some photographs and videos related to the … ground floor carpark / entrance CCTV at approximately 9 am (HKT)  and 10:45pm (HKT), in preparation for an Originating Summons (HCMP 612 / 2021), and noting a white Audi brand 4 doors sedan, with a registration number starting with [number omitted], being driven from a carpark space at the … ground floor carpark and passing in front of the plaintiff, before exiting the … ground floor carpark, the Plaintiff recognised by appearance and gait as the masked individual driving a grey passenger van with registration number [number omitted] on 3 November 2020, seating on one of the two chairs underneath one of the … ground floor CCTV encased cameras and signage, holding a mobile phone with one or both his / her hands, near the … female daytime security guard Ms Yu He Hua, who was inside the … ground floor management office near the rolled up gates of [the building] and then bent over laughing as if uncontrollably as a large grey van was driven through the entrance … into the ground floor carpark …, into the direction of the Plaintiff at devastating speed and past the Plaintiff, as the Plaintiff was attempting to leave [the building].” (underline added)

19.  The plaintiff then stated his intended claim:

“The Plaintiff claims damages in the amount of HKD$26,000,000.00 (HKD $26 million)  from the Defendant … and the Defendant 2 [ie the masked individual], as a result of the tortious and / or wrongful actis and / or omissions by the Defendant, and the Defendant 2, together with Defendant 3, Mandy Wong, from at least around October 2019, until around 30 June 2021, as the Plaintiff has suffered damages including but not limited to psychological scaring / injuries, anxiety, grief.” (underline added)

20.  As mentioned above, the above allegations are repeated (more than once)  in subsequent affidavits, sometimes with details altered. 

21.  For instance, in his affidavit filed on 7 January 2022, the plaintiff reiterated his claim for psychological injuries. However, instead of claiming against the defendant, the masked individual and Mandy Wong, he stated that the claim would be against the defendant, the masked individual and a Mr So.  In fact, at today’s hearing, the plaintiff said that his intended claim would be against a total of four defendants which is again different from what he said in his affidavits. 

22.  Based on the above factual premise, the plaintiff seeks discovery of the three sets of information or records:

“for the purpose of legal proceedings to be brought against the Defendant, and the masked individual driving [the vehicle] between approximately 8:33 am, HKT, to approximately 8:34 am, HKT, on 3 November 2020, in the ground floor carpark area of [the building], in an intended damages claim for psychological scarring / trauma / injury, anxiety, grief, for the amount of HKD$30,000,000.00 (HKD$30 million)”

Legal principles

23.  The relevant statutory provisions are contained in section 41 of the High Court Ordinance and Order 24, rules 7A and 8 of the Rules of the High Court.

24.  Section 41 of the High Court Ordinance provides as follows:

“(1)  On the application, in accordance with rules of court, of a person who appears to the Court of First Instance to be likely to be a party to subsequent proceedings in that Court in which a claim is likely to be made, the Court of First Instance shall, in such circumstances as may be specified in the rules, have power to order a person who appears to the Court of First Instance to be likely to be a party to the proceedings and to be likely to have or to have had in his possession, custody or power any documents which are directly relevant to an issue arising or likely to arise 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)  For the purposes of subsection (1), a document is only to be regarded as directly relevant to an issue arising or likely to arise out of a claim in the anticipated proceedings if—

(a)  the document would be likely to be relied on in evidence by any party in the proceedings; or

(b)  the document supports or adversely affects any party’s case.”

25.  Order 24, rule 7A provides as follows:

“(1)  An application for an order under section 41 of the Ordinance for the disclosure of documents before the commencement of proceedings shall be made by originating summons (in Form No. 10 in Appendix A)  and the person against whom the order is sought shall be made defendant to the summons.

…

(3)  A summons under paragraph (1)  or (2)  shall be supported by an affidavit which must—

(a)  in the case of a summons under paragraph (1), state the grounds on which it is alleged that the applicant and the person against whom the order is sought are likely to be parties to subsequent proceedings in the Court of First Instance;

(b)  in any case, 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.

(3A)  In the case of a summons under paragraph (1), paragraph (3)(b)  shall be construed as if for the word “relevant”, there were substituted the words “directly relevant (within the meaning of section 41 of the Ordinance)”.

…”

26.  Lastly, Order 24, rule 8(2)  provides:

“No order for the disclosure of documents shall be made under section 41 or 42 of the Ordinance, unless the Court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.”

27.  The principles governing pre-action discovery are set out and explained by Zervos J (as he then was)  in VTB Debt Centre LLC v Top Fuel Corporation Ltd HCMP 1543/2013, 16 April 2014 and by G Lam J (as he then was)  in Zhang Shouen v Standard Chartered Bank (Hong Kong)  Ltd HCMP 682/2015, 15 October 2015. 

28.  There are five requirements:

(1)  The applicant appears to be likely to be a party to subsequent proceedings in the court in which a claim is likely to be made.  In order to satisfy the requirement that a claim is likely to be made, the applicant must show that a claim “may” or “may well” be made if discovery is granted. 

(2)  The respondent appears likely to be a party to such proceedings. 

(3)  The respondent appears likely to have or to have had in his possession, custody or power the document requested. 

(4)  The requested document is “directly relevant” to an issue arising or likely to arise out of that claim.  “Direct relevance” is shown only if:

(a)  the document would be likely to be relied on in evidence by any party in the proceedings; or

(b)  the document supports or adversely affects any party’s case. 

(5)  The applicant must satisfy the court that the order for pre-action discovery is necessary either for disposing fairly of the cause or matter or for saving costs. 

29.  The first four requirements are jurisdictional conditions. Unless they are satisfied, the jurisdiction to order pre-action discovery does not arise.  If they are satisfied, the court has a discretion to order pre-action discovery of the document in question.  The fifth requirement means that the court will not exercise its discretion to make an order unless discovery is necessary either for disposing fairly of the cause or matter or for saving costs: Zhang Shouen at paras 21 to 22.

30.  It should be appreciated that one of the objects of the pre-action discovery regime under section 41 is to enable a plaintiff to find out before he starts proceedings whether he has a good cause of action or not.  This object would be defeated if he had to show, in advance, that he had already got a good cause of action before he saw the documents. 

31.  That said, in order to take advantage of the section, the applicant must disclose the nature of the claim he intends to make and show not only the intention of making it but also that there is a reasonable basis for making it.  Ill-founded, irresponsible and speculative allegations based merely on hope would not provide a reasonable basis for an intended claim in subsequent proceedings.  The burden of persuasion rests with the applicant.  He needs to show a potentially meritorious claim which comes within the section: VTB at paras 33, 35 and 37. 

32.  The court must be clear what the issues in the litigation are likely to be.  This involves knowing the nature of the intended claim, the constituent elements of the cause of action, the allegations being made by the intended plaintiff, and the issues that are likely to arise.  This requires the applicant to supply meaningful details of the intended claim, so that the potential defendant can properly respond to the application and evidence and so that the court can see from the combined evidence of the parties the likely issues and assess, by reference to the issues, the direct relevance, if any, of the documents sought: Zhang Shouen at paras 30 and 45. 

Discussion

33.  Having reviewed the materials produced by the plaintiff, I am not satisfied that he has met the requirements for pre-action discovery against the defendant. 

34.  There is a huge question mark over the nature of his intended claim.  It is highly unclear what his cause of action is.  That being the case, it is extremely doubtful whether he has a potentially viable claim.  Furthermore, it is simply not possible to identify the issues in the intended claim.  As disclosed by the affidavits, it is not a claim which is “likely to be made” as the claim, with its defects, cannot be said to be one which “may” or “may well” be made after discovery. 

35.  The application fails to satisfy the first requirement.  In this event, the court has no jurisdiction (or power)  to order pre-action discovery: Zhang Shouen at para 22. 

36.  I have come to the above conclusion for the following reasons.

37.  The plaintiff intends to claim against the defendant as the 1^st defendant in the intended claim.  The plaintiff has identified the defendant as the passenger in the vehicle in the first incident on 3 November 2020.  The vehicle is said to be “in forward driving mode and suddenly reversing in reverse mode, into the direction of the Plaintiff”. 

38.  It is not apparent at all what “tortious” or “wrongful” acts the defendant as the passenger had committed in this incident or during the time period identified by the plaintiff.  It is also not known how the alleged psychological injuries have resulted from the act of the defendant. 

39.  The plaintiff is seeking substantial damages of $26,000,000 or $30,000,000.  But the basis of the claim against the defendant is simply unknown. 

40.  Without knowing what the intended case is about, it is not possible for the court to decide whether the documents sought are directly relevant.  In any event, one simply cannot tell the relevance of the information sought in the third category, ie the correspondence between the plaintiff and the masked individual concerning the plaintiff or the alleged water leakage case.  

41.  At today’s hearing, I have given the opportunity to the plaintiff to make oral submissions on the nature of his potential claim against the defendant.  In short, he relied on the matters deposed to in his affidavits.  He submitted that it is a personal injuries claim.  He specifically reserved his right not to spell out further details of his case at this stage as he did not want to divulge further information at his disadvantage. 

42.  The plaintiff is of course entitled to reserve his right.  But if such reservation means that he would fail to meet the jurisdictional threshold in this application, he would have to live with the consequence. 

43.  As regards the first and second categories of information or records, it is tolerably plain that the plaintiff wishes to obtain the information so as to find out the identity and address of the masked individual and to make a claim against him.

44.  However, similar to the intended claim against the defendant, the intended claim against the masked individual does not seem to be a potentially viable claim, based on the affidavit evidence.  One cannot tell what “wrongful” or “tortious” act the masked individual had committed which caused the alleged psychological injuries suffered by the plaintiff. 

45.  In this regard, I share the following observation of K Yeung J made in the previous pre-action discovery application in HCMP 612/2021:

“I have considered [the plaintiff’s] description of the events that allegedly took place on 3 November 2020. He alleges no contact. He provides no particulars on speed, distance or driving manner. On the facts before me, I am not satisfied that there is cogent and compelling evidence to demonstrate that serious tortious or wrongful activities have taken place.” (at para 17)

46.  The observation was made in the context of the Norwich Pharmacal application made by the plaintiff at that time.  Hence the reference to the need for “cogent and compelling evidence”, and the high threshold of “serious tortious or wrongful activities”.  But the factual observation of the judge applies here with equal force. 

47.  The crux of the plaintiff’s contention is that the masked individual was driving the vehicle forward but suddenly reversed it into the direction of the plaintiff.  This by itself does not provide a reasonable basis for making any claim against the masked individual.  The plaintiff submitted to the effect that the absence of physical contact is not necessarily fatal to his claim.  Even assuming that is correct, the burden is still squarely on the plaintiff to make clear to the court how his personal injuries claim has come about from the alleged non-physical contact.  He has failed to do so.  (For completeness, I should add that the relevance, if any, of the second incident on 24 April 2021 is simply not understood.)

48.  The first requirement is hence also not met in relation to the intended claim against the masked individual. 

49.  To conclude, in this pre-action discovery application, the plaintiff has failed to satisfy the fundamental jurisdictional requirement.  The application must be refused. 

50.  This is the second time that the plaintiff has sought pre-action discovery against the defendant in relation to the same alleged incident on 3 November 2020.  There is no merit in the application on both occasions.  Objectively speaking, the defendant has been vexed twice in that he has had to suffer the inconvenience caused by two unmeritorious applications in relation to the same subject-matter taken out against him in a row in less than one year’s time.

Order

51.  I order that the originating summons be dismissed. 

[Submissions on costs]

52.  I order that the defendant do have costs of the originating summons, summarily assessed at $900, payable by the plaintiff within 14 days from today.