XCHRX AU KAM HAN AND ANOTHER v. AU KAM MING AND ANOTHER

HCPI 1069/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1069 OF 1998

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J U D G M E N T

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1. This is an appeal by the Defendants against the decision of Master Susan Kwan dated 7 December, 1999 on the Plaintiff's application for disclosure against a non-party, the Secretary for Justice acting on behalf of the Commissioner for Police, in respect of certain documents and records brought into being as a consequence of a criminal investigation into the death of Leung Pui Hong. The classes of documents ordered to be disclosed were:

1. Forensic reports brought into being as a consequence of and in pursuance of the Police investigation.

2. Post-mortem reports of the deceased.

3. Photographs, sketches and maps of the scene where the deceased's body was found.

4. Records of interviews and arrests of the Defendants and all suspects of the assault/kidnap/killing of the deceased.

2. The Plaintiffs had sought a disclosure order somewhat wider than that ordered but abandoned the request for the Police investigation reports themselves. The Master also ordered that in relation to the records of interviews and arrests the identity of remaining suspects at large, and anything calculated to identify them, should be edited on the basis of public interest immunity as claimed by the Secretary of Justice. The Plaintiffs seeking this disclosure were the widow and son of the deceased who was, almost certainly, unlawfully killed. The Defendants (the Appellants in this appeal) opposed disclosure abinitio, having pleaded guilty to conspiring to cause grievous bodily harm with intent to the deceased.

3. The Learned Master's decision was an eminently reasonable one of good judgment. There the matter should have been allowed to rest. However for reasons best known to those who conceived them, this appeal was launched to reverse that judgment and prevent disclosure. The Plaintiffs' claim is that the two Defendants were directly responsible for the killing of the deceased who may well have died in somewhat horrific circumstances. The Defence put forward is that although they pleaded guilty to the conspiracy referred to, they withdrew from the conspiracy and that others went on to bring about the victim's death. It may be (and I stress the word "may") that those responsible for the prosecution did not have sufficient evidence, of the standard of proof requisite for a conviction, to sustain a case of murder against the Defendants. It is not necessary for me to consider the merits of this decision.

4. Against this background I propose to consider shortly the arguments advanced by the Defendants, which are essentially self-serving in the extreme. I will deal with these under the headings set out in the skeleton argument of the Defendants' counsel.

Forensic reports of the said Police Investigation

5. The opening sentence is difficult to fathom - "There is a real risk that these reports presumably of a scientific nature, were also passed by the Police to the Department of Justice". It would be astonishing if they were not. There is obviously a scientific element. They may well contain evidence against the Defendants. In the context of a civil claim there may be inferences to be drawn from them against the Defendants. The Defendants contend that public interest immunity should apply to prevent disclosure. The Secretary for Justice has not advanced such an argument and it is easy to see why. It would be insupportable. The case cited - Evans v. Chief Constable of Surrey [1988] QB 588 does not assist the Defendants at all. The situation is in no way comparable to that of these Defendants. The Attorney-General (on a par with the Secretary of Justice) claimed public interest immunity for the report from the Police Officers to the Director of Public Prosecutions. In the instant case there is no disclosure ordered of such report or its equivalent. The authority cited is irrelevant. The point has no merit.

Post-mortem report of the deceased

6. The Defendants say they have no objection in principle to disclosure of this. It is true that there is a post-mortem report attached to the Statement of Claim. That may be the report for the purposes of the inquest. There may be other post-mortem reports in the Police records. Occasionally there are post-mortem reports for the purposes of a murder investigation which precede that for the inquest. There cannot be any valid objection in principle or in substance.

Photos, sketches and maps of the scene where the deceased's body was found

7. The Defendants contend that these cannot assist the Plaintiff's case on causation. Such an argument is na?ve in the extreme. Such material evidence may afford significant evidence of identification of those responsible for a crime. The argument advanced does not merit further consideration.

Records of interviews and arrests of the Defendants and all suspects of the assault/kidnap/killing of the deceased

8. The statement that "Clearly litigation Privilege attaches to this class of documents and since there was no trial in the ... criminal proceedings none of those documents entered the public arena", is self-evidently lacking in logic and common sense. The Defendants cannot claim legal privilege in respect of any such interviews and/or statements. The authority cited - British Coal Corporation v. Dennis Rye Ltd (No. 2) [1988] 1 WLR p. 1113 is not apposite. The relevant documents in that case were privileged documents of the Plaintiff within the civil proceedings. They had been supplied to the Police to assist in their investigation as a result of which criminal proceedings were brought against the defendants to the civil action. Having been disclosed to those defendants in accordance with the Attorney-General's Guidelines together with other documents in the civil proceedings by order of the Judge in the criminal proceedings, the Defendants sought to argue that the Plaintiffs had waived legal privilege when they were asked to return the documents and ordered to return all documents and were under an injunction restraining them from using any such documents in the civil proceedings. The Court of Appeal confirmed that there had been no waiver and upheld the injunction. It is impossible to see how this case could support the Defendants' contention. There is no parallel.

9. Secondly, whether or not such documents contain hearsay can be no argument for withholding disclosure. It is a matter for the trial judge to decide the admissibility of such evidence and the weight to be attached to it. Until the documents have been considered it is not possible to rule on their admissibility. This application is concerned with disclosure only.

10. The Public Interest Immunity argument is raised again on the basis that the Secretary for Justice has not extended the claim widely enough to exclude all the interviews and statements which may refer to others, albeit protected by the editing provided for in the order. If during the course of the civil proceedings there is the slightest risk of the protective provision being set at naught, the Court will be sufficiently alert to such situation and can ensure protection. This argument is advanced simply to try and exclude any material which may afford support for the Plaintiffs' cause. The authorities referred to - Conway v. Rimmer [1968] AC p. 910 and Smerchanski v. Lewis [1981] 58 CCC 2d 328 - do not support the Defendants' case by the widest stretch of the imagination.

11. The only other point which I need to deal with, if only to make it clear that it has no merit, is the astonishing contention that the Defendants "have a property interest in their Records of Interview" and, I assume by analogy, in any written signed statements made under caution to the Police. This is perhaps merely an alternative to the Defendants' counsel's illogical suggestion that the Defendants could protect such documents by legal professional privilege.

12. Statements by a Defendant whether oral or written, and records of interview of a Defendant, whether signed or not, made in the course of an investigation into a crime and/or criminal proceedings are not privileged for the Defendant for the purpose of those proceedings, nor for the purpose of civil proceedings. In the case of the former it would make a nonsense if the Defendant were able to claim privilege because it would mean any denials or admissions made by him could not be given in evidence without his consent. I have never heard such an untenable argument advanced before.

13. In the case of civil proceedings similarly the Defendants cannot claim privilege. They were not brought into being by reason of or in contemplation of such proceedings.

Conclusion

14. The Statement of Claim as amended is a rather convoluted document but the issues are clear. Essentially the Defendants are alleged to have murdered the deceased or to have brought about his death directly or indirectly. All the documents ordered to be disclosed are relevant to the issues. It may be that some of them will in fact yield little of direct relevance but that is a matter for later consideration.

15. The arguments advanced by the Defendants such as they are, are entirely without merit. This appeal has been generated by lawyers. It is a cynical misuse of procedure demonstrating an ignorance of, or, at best, a misunderstanding of some very basic concepts.

16. The appeal is dismissed with costs. The proper basis of costs is in my judgment indemnity costs. The appeal should never have been brought. The Defendants will pay both the Plaintiffs' costs and the costs of the non-party, the Secretary for Justice, on that basis. It was necessary for the Secretary of Justice to be represented at the appeal since it was the order for discovery to be made by her department which was the subject of review.

17. I indicated I intended to exercise my power under Order 62 rule 9(4)(b) to assess the costs of this Appeal.

18. As far as the Plaintiffs' costs are concerned I assess the costs at the sum of $18,750.00 having reduced the charge for the Legal Executive attending the hearing with counsel to $1,500.00. I have taken into account the Defendants' objections which failed to set out for example, their own counsel's fees for comparison.

19. The costs of the Secretary for Justice are very reasonable and I allow them as set out in the sum of $9,934.00. Although fees for costs draftsmen are not likely to be allowed in such assessments, the amount claimed fairly represents what the government counsel would charge.

20. These orders for costs are forthwith orders.