TSUI KOON WAH v. DIRECTOR OF SOCIAL WELFARE

CACV 8/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 8 OF 2005

(ON APPEAL FROM HCA No. 2938 OF 2003)

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JUDGMENT

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Hon Rogers VP :

1. I agree with the judgment of Sakhrani J.  In the circumstances this appeal will be dismissed with an order for costs as set out in paragraph 22.

Hon Sakhrani J :

2. This is an interlocutory appeal from the order of Burrell J made on 14 December 2004 whereby he dismissed the plaintiff’s appeal from the order of Registrar C. Chan made on 3 November 2004. 

3. On 3 November 2004 the Registrar dismissed the plaintiff’s applications made to him by 3 summonses taken out on 17 May, 2 June and 21 September 2004 respectively, save that the Registrar ordered further discovery of documents under para. 2(a) of the summons dated 2 June 2004, as was conceded by the defendant.

4. By way of background, the plaintiff was employed by the defendant on 21 May 2002 as a Contract Social Security Assistant at the Mongkok Field Unit of the Social Welfare Department.  His employment was terminated on 3 January 2003 when he was summarily dismissed on grounds of misconduct.

5. The plaintiff was dissatisfied with this decision and brought proceedings in the Labour Tribunal against the defendant alleging that the defendant had wrongfully dismissed him.  Those proceedings were later transferred to the High Court by the Presiding Officer of the Labour Tribunal and they were continued as HCA 2938 of 2003.  This appeal is from the order made by Burrell J on 14 December 2004 in those proceedings.

6. In relation to his dismissal, the plaintiff has also brought other proceedings.  He has brought an action in the High Court being HCA 890 of 2003 against four officers of the Social Welfare Department for making what he alleges to be defamatory statements against him.

7. He has also sought a judicial review of the decision of the Privacy Commissioner for treating his complaints to him against the defendant as being frivolous and/or vexatious and/or not made in good faith. 

8. The main purpose of the appeal before us is twofold.  One is to obtain further discovery from the defendant of the statement made by a member of the defendant’s staff namely, Ms Lo Siu Yin (Ms Lo) on 22 October 2002.  The other is to seek to set aside or vary the order for costs made by the judge.

9. The re-amended defence sets out and particularizes at para. 20 what the defendant says is the conduct of the plaintiff justifying his summary dismissal.  These include his poor performance and his attitude to customers of the defendant and a number of his colleagues. 

10. One of the matters relied on by the defendant is the allegation that the plaintiff arrived late for work but failed to accurately record his time of arrival at work in the attendance book.

11. In her statement dated 1 April 2003 to Mr. Tam, District Secretary of Yau Tsim Mong District Office, Ms Lo stated that on 22 October 2002 she gave a statement to Miss Kwok Yuen Han, Assistant Social Security Officer.  However, that statement was returned to her after perusal so that she could supplement it. Ms Lo indicated that she had no wish to supplement it as she had no intention to prove whether the plaintiff was late or not or to complain against him.  Ms Lo, therefore, did not provide a statement.

12. The witness statement of Miss Kwok Yuen Han confirms that on 22 October 2002 Ms Lo gave her a written statement regarding an incident on 16 September 2002.  On being questioned by Miss Kwok, Ms Lo told her that she could only guess that the plaintiff arrived at the office between 8.45 am and 8.48 am.  She was asked to clarify the matter further in her written statement and the statement made on 22 October 2002 by Ms Lo was returned to her.  However, Ms Lo did not submit the statement to her again.

13. The plaintiff sought further discovery of the statement of 22 October 2002 of Ms Lo but his applications for the same were dismissed.

14. By his summons dated 7 June 2004, the plaintiff sought an order that the defendant make and file an affidavit stating whether the original and a copy of the said statement of Ms Lo of 22 October 2002 are or have been in the defendant’s possession, custody or power and if not then in its possession, custody or power, stating when it has parted with it and what has become of it.  By his summons dated 21 September 2004, the plaintiff sought an order that the defendant do produce for inspection the said statement of Ms Lo and do permit him to peruse the same, make notes of the contents thereof and to be supplied with a copy of the same.

15. Burrell J dealt with the further discovery of Ms Lo’s statement at paras. 10 and 11 of his Decision.  He said at para. 10 :

“Ms Lo was an employee of the defendant.  There is affidavit evidence that on 22 October 2002 she commenced writing a witness statement in these proceedings.  The plaintiff wants to see it.  The effect of the affidavit evidence concerning this statement is that although Ms Lo may have written something she never submitted the statement and the defendant has never had possession of it nor the power to obtain it from Ms Lo.”

16. And at para. 11, the judge said :

“I accept that if the statement exists the defendant has no power to compel Ms Lo to provide it for inspection.  It is her statement and the fact that she is an employee of the defendant does not empower them to obtain it from her.”

17. We have considered the written skeleton submissions of the plaintiff and the defendant.  In my judgment the judge’s reasoning cannot be faulted.  The statement of Ms Lo of 22 October 2002 is not in the possession, custody or power of the defendant and the judge was right to dismiss the application for further discovery of the same.  It seems pointless, in my view, for the plaintiff to pursue applications for discovery of the said statement from the defendant.  If the plaintiff wishes, he can always subpoena Ms Lo at the trial to give evidence. But he cannot insist on discovery of the said statement from the defendant who does not have possession, custody or power of the same. 

18. There was also an appeal as to the costs order made by the judge.  The judge made an order that the appeal be dismissed with costs to the defendant. It seems to me that this was the proper order to make as costs should normally follow the event.  The plaintiff as a litigant should have realised that in pursuing contested applications costs should normally follow the event.

19. The plaintiff seeks to set aside or vary the costs order made by the judge.  However, it is trite that the Court of Appeal will not interfere with a judge’s discretion as to costs unless it was shown that he failed to exercise the discretion, or that he exercised it upon a false principle or did not exercise it judicially or the exercise of the discretion was demonstrably flawed (marginal note 62/2/11 Hong Kong Civil Procedure2004).  The plaintiff fails to show that the judge has gone wrong in the exercise of his discretion.

20. The plaintiff also submitted that in any case, the costs under the Labour Tribunal Ordinance should have been awarded rather than costs on the High Court scale.  There is no basis for ordering costs under the Labour Tribunal Ordinance.  The proceedings were transferred to the High Court and it is only right and proper that costs should be awarded as costs in the High Court action.  This would mean that taxation should be on the High Court scale.  I fail to see how it can be said that the judge fell into error.

21. There is no merit in the appeal.  The appeal is dismissed.

22. I would also make an order nisi that the costs of the appeal be costs to the defendant to be taxed, if not agreed.