GURUNG KESHAR BAHADUR v. ISLAND SOUTH PROPERTY MANAGEMENT LTD

DCEC 965/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE No. 965 OF 2012

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DECISION

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Introduction

1.  By summons dated 13 August 2013 (“the Summons”), the applicant applies for specific discovery of a document known as medical examination form Pol. 42. At this hearing, Mr Lee, counsel for the applicant indicates that the applicant no longer pursues his application and wishes to withdraw the Summons. The only debate is about the cost order appropriate for this application.

2.  To determine the costs issue, I have to state the minimal background facts, which are as follows. The applicant was a security guard working for the respondent in a residential area known as Bel Air on the Peak, Hong Kong (“the Property”). The respondent was the property management company of the Property.  On 18 February 2012, the applicant was assaulted by a resident of the Property (“the Resident”). As a result, the applicant sustained injuries in his right ear, right chest and right little finger.  On 2 June 2012, the applicant commenced these proceedings to claim compensation against the respondent.

The Application

3.  This application is supported by an affirmation of Lim Chi Yu Alvin, a partner of the solicitors for the applicant (“Lim’s Affirmation”). In reply, the respondent filed an affirmation of Wong Ting Chun, a consultant of the solicitors for the respondent.

4.  There is no controversy that on 5 August 2013, the applicant's solicitors by their letter of the same date requested the respondent’s solicitors to disclose the Document. The Respondent solicitors replied on the same day by a letter (“the Reply Letter”) that they could not find the Document from those documents passed onto them by their predecessor, Messrs Deacons (“the Predecessor”).

5.  On the evidence of the applicant, the Resident was prosecuted under case number ES CC 1449/2012. It is alleged in Lim’s Affirmation that “to the best knowledge and belief of the applicant”, there were communications or dealings between the Predecessor and the legal representatives of the Resident.

6.  To substantiate this allegation, the applicant produced a two-page extract from the transcript of the criminal proceedings. There it can be seen that defence counsel for the Resident explained to the court that Deacons was contacted by the Resident’s lawyers for the sake of locating a defence witness one Mr Ho, the applicant’s superior.

7.  The respondent by the affirmation filed on its behalf denies knowledge of the Document. It is also explained that the Predecessor did not take any part in the criminal proceedings and the only involvement was that they received a witness summons issued to Mr Ho from the Resident’s lawyers and passed the same onto Mr Ho. Mr Ho of course was the employee of the respondent.

8.  There is no contrary evidence. Nor did the transcript disclose any further and any other involvement on the part of the Predecessor.

9.  In mu view, this application is hopeless and the Summons is bound to be dismissed in any event for the following reasons:

1.   Lim’s Affirmation falls foul of the requirement of O.24 r.7, Rules of the District Court; it does not explain the prima facie existence of the Document. I have no idea why the Document might exist at all;

2. Even if the Precedessor was involved to such an extent in the criminal proceedings, there is still no prima facie case of the Precedessor and hence the respondent’s having possession, control or power of the Document if it exists at all; and

3. The applicant does not explain why the Document is relevant and how it relates to an issue(s) of these proceedings.

10.  Mr Lee relies on the fact that the respondent’s solicitors did not deny the existence and relevance of the Document in the Reply Letter. The burden of proof of a prima facie case, however, rests on the applicant seeking specific discovery. The applicant does not begin to discharge the burden in my judgment.

Conclusion and Order

11.  For the reasons given, whilst I accept the applicant’s application to withdraw the Summons, after hearing counsel, I also order that the applicant do pay costs of this application to the respondent, summarily assessed at HK$35,000, payable forthwith.

12.  Lastly I thank Mr Lee and Ms Kei for their assistance.