XCHRX CHINA LIGHT & POWER CO., LTD. and Another v. MICHAEL EDWARD ASHTON FORD

1993, No. A6382

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. This is an adjourned summons for directions which I heard originally on 20th August 1993. It is unusual to give a reasoned judgment on a summons for directions, but as this raises some important matters and the parties might wish to take the matter to the Court of Appeal, I thought it would be helpful if I set out, albeit briefly, the reasons behind my decision. I apologise if this judgment is not grammatically perfect, but I think it right that I should give it straightaway.

2. I have dealt with all the interlocutory matters in this case, but there have been a substantial amount of affidavits filed. I have reminded myself of what is contained within those affidavits. Essentially, this is a claim by the plaintiff public companies and as Mr. McCoy points out powerful companies in Hong Kong, is the return of papers entrusted to Mr. Ford, a barrister.

3. In particular, it relates to a document called the Blue Report which Mr. Ford was given and this was not utilized in the inquest which was held. I do not set out all the facts as they are found in the affidavits. The matter originally came before me ex-parte for an injunction restraining Mr. Ford from utilizing these documents. What had happened was that in the course of this inquest, Mr. Ford was dismissed as the barrister and Mr. Nigel Kat took over the conduct of the inquest.

4. Mr. Ford, from the correspondence, it is clear, has had a dispute over the fees that were payable to him. He also considered that in view of a number of matters that were said to him, it may be that he presumed that caused his dismissal, that his professional integrity was being attacked.

5. He, therefore, launched proceedings in America, claiming a very substantial sum of money, the cause of action appears to arise, from the fact that he was dismissed as a barrister and he sets out in the American proceedings the matters affecting his good name, and his livelihood and seeks substantial sums of money. In so far as Hong Kong is concerned, there is no evidence that any one has made any complaint about Mr. Ford. It occurred to me therefore Mr. McCoy was quite right to remind me what I had said in the written judgment, as to what was really the defence to this case. I confess I have been left in somewhat of a quandary because, on the documents that did not appear to be any defence raised and in the affidavit, the defence appeared to be this.

"Paragraph 48. I had never before in my professional life been in a position where I now believed that a number of matters positively indicated criminal misconduct if not a conspiracy to pervert the cause of justice.... It further seems quite possible that Mr. Rhys' deliberate allegations were after all correct and that there has been a perversion of the course of justice but that he had falsely implicated me for his own purposes. I formed the conclusion at that point there was very likely to be some criminal investigation in to the cover-up of the Rhys allegations.

If I then parted with the papers, I would no longer have the very proof I required to establish my own innocence. I had no other means to do so."

6. That appeared to me and still appears to me to be the main defence which is being put forward and Mr. McCoy submits in different words that a barrister can hold on to documents because of a potential threat of being part of a cover-up and so what the issue appears to me is, Mr. Ford is saying that in case he gets involved in some criminal investigation, he has a right to keep these documents. That is a very short and relatively a straight-forward matter to be determined. However, what appears to have happened here is that the summons for directions issued by the plaintiffs, first of all, asked for a Statement of Claim and a defence. I adjourned the summons because I considered it fair that a defence should be before myself, before I make any decision on the other matters.

7. I therefore adjourned the other matters. The defence was put in, I think, two or three days ago. It is a fairly lengthy document drafted by Mr. McCoy, a well respected and able member of the bar and raises a number of matters essentially dealing with a criminal cover-up, if I can use that global phrase, that the plaintiffs embarked upon, in order to hide the truth of the cause of this explosion from the coroner. Those, of course, are serious matters and if the plaintiffs have been parties to that, then they make themselves liable to be prosecuted by the Attorney General and Mr. McCoy is right that if they had acted in that way, they would be, on standard principles, disentitled to injunctive to relief which at the moment they have. That, therefore, is a matter which may well have to be explored.

8. However, all I have to decide at the moment is the issues raised on the summons for directions. The first matter of real dispute is whether there should be an order for discovery. The onus is on the plaintiff to demonstrate the discovery if not necessary. The documents here are alleged to be confidential documents and the plaintiff says nothing need to be disclosed. I have listened to all the submissions. I have re-read substantial parts of the affidavits. I am satisfied that no discovery is required in this case. I would therefore order no discovery.

9. Mr. McCoy, in a supplemental summons for directions, asks for a trial by jury. This case does not fall within s.33(a) of Cap. 4, and if this is a matter of my discretion, I am in no doubt, having considered all these matters, and having dealt with all the introductory matters, that I should not order a jury trial. The only matter that I have given some considerable thought to is Mr. McCoy's request for expert evidence. Having, however, considered all the matters, I do not consider this a case where expert evidence is required.

10. However, I am not in a position to deal with the other matters on the summons for directions which asked for statement of all witnesses of fact to be called to be exchanged and the issue of liability and quantum to be split and the length of trial. I think I would require more information once this matter progresses. I think Mr. McCoy is correct when he says that any great urgency has been negatived by the injunction which I have already granted. The injunction is in force and whilst obviously this case should proceed as expeditiously as possible, I can see no reason for not permitting a defendant from utilizing the procedures of the court in whatever way he is advised, as long as, of course, that they are not aimed at deliberately delaying a trial. But I think Mr. McCoy is right that I should not make any orders such as to disentitle Mr. Ford from his normal rights under our law.

11. I, therefore, do not make any further orders with regard to the length of the trial, or how the matter is tried until I know more precisely what witnesses will be called and what is their scope of their evidence. I do not make an order that I be provided with the witness statement, but I do make an order that I will be provided with the names of the witnesses, the scope or range of their evidence. Mr. McCoy is entitled to call any witnesses he desires. He is entitled to call witnesses from the plaintiffs if he wants to. I cannot stop that happenning, but what I intend to do is to make the orders I have done on this summons for directions and stand over those are the two matters, that is the length of the trial and the method of the trial until later.