YUEN YICK HANG ALISTON v. DISTRICT OFFICER (NORTH)

HCMP 1171/2021

[2022] HKCFI 2857

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1171 OF 2021

_________________

_________________

_________________

________________

JUDGMENT

________________

Introduction

1.  This is the hearing of the Plaintiff’s application by Originating Summons filed on 17 August 2021 (“OS”) for a Norwich Pharmacal Order for the disclosure by affidavit of information (“Requested Information”) from the Defendant in aid of his intended legal proceedings pursuant to RHC Order 85 rule 2. 

2.  The information is said to be necessary by reason of the deadlock in the Plaintiff’s and Mr Yuen Chi Kwong’s (“Yuen”) application for approval of appointment and registration as managers of two tsos (“2 Tsos”) pursuant to section 15 of the New Territories Ordinance, Cap 97 (“NTO”) viz:

(1)  Yun Wu U Tso also known as Yun Wun Yu Tso also known as Yuen Wun Yu Tso (袁煥宇祖); and

(2)  Yun Tsun Yau Tso also known as Yuen Tsun Yau Tso (袁全有祖).

3.  The Plaintiff and Yuen (“Applicants”) were unanimously elected by all 12 members present personally or by representative as managers of the 2 Tsos at a members’ meeting on 18 August 2019.  On 19 August 2019, they made a section 15 NTO application for approval of their appointment and registration as managers of the 2 Tsos, but owing to inadequate supporting documents, they resubmitted it on 16 September 2019 (“2019 Application”).

4.  The Defendant is the appropriate authority to handle applications for approval of appointment of managers and registration of the names of managers of tsos and tongs under section 15 of NTO.

5.  According to the OS, the Requested Information is for:

(1)  Identities of all persons, whether natural persons, corporations, legal entities or unincorporated associations (“Objectors”), who have made written and/or oral objections (“Objections”) to the Defendant regarding (a) the appointment and/or (b) approval of appointment and/or (c) registration of the names of the Plaintiff and Yuen as managers of the 2 Tsos pursuant to section 15 NTO, together with any address and/or telephone and/or fax numbers of the Objectors known to the Defendant.

(2)  Full particulars of all the grounds relied upon by each of the Objectors in their Objections, together with all relevant supporting documents, information and materials furnished by the Objectors to the Defendant.

6.  According to the Defendant’s skeleton, the Plaintiff’s application is contested on 3 grounds:

(1)  There exists no tortious or wrongdoing of any kind because the Objections were lawfully made and the Plaintiff has failed to show any wrong in the Norwich Pharmacal sense: Ground 1.

(2)  The Defendant is a “mere witness”: Ground 2.

(3)  The disclosure is unnecessary and disproportionate because:

(a)  The Plaintiff need not name the Objectors in the intended Order 85 Proceedings;

(b)  The Plaintiff does not require the Objections to prove the authenticity of the Verified Genealogy; and

(c)  The disclosure of the Requested Information is disproportionate against the Defendant’s interests: Ground 3.

Background

7.  The 2 Tsos are tsos (祖) under Chinese law and customs, ie ancient Chinese institutions of ancestral land-holding derived from a common ancestor which is enjoyed by the male descendants for the time being living for their lifetime and so from generation to generation indefinitely.  The focal/common ancestor of the 2 Tsos is 袁煥宇 also known as 袁全有, who was of the 15th generation of the Yuen Clan (袁氏) who first settled in the area of what is now Luo Hu District (羅湖區), Shenzhen about 600 years ago.  Subsequently, some descendants of 袁煥宇moved to and settled in the area of what is now Lo Wu (羅湖) in Hong Kong.  The 2 Tsos are separate and distinct tsos set up to venerate 袁煥宇 (全有), with their male members now residing in the Hong Kong.

8.  At present, the 2 Tsos are the registered owners of the following plots of land in Demarcation District 89, New Territories (“DD 89”) viz.

(1)  Remaining Portion of Section B of Lot No 458.

(2)  Remaining Portion of Section B of Lot No 459.

(3)  Remaining Portion of Section B of Lot No 460.

(4)  Lot No 465.

(5)  Lot No 471.

(6)  Lot No 502.

(7)  Lot No 538, also known as No 123 Sha Ling, North, New Territories.

(8)  Remaining Portion of Section B of Lot No 540.

(9)  Lot No 542.

(10)  Lot No 26.

(11)  Remaining Portion of Section B of Lot No 551.

9.  On the Plaintiff’s case, the 2 Tsos have always had the same, common membership.  Until recently, there were 12 members viz the Plaintiff, Yuen, 袁國強, 袁翊軒, 袁旭漢, 袁澍銘, 袁嘉暉, 袁嘉康, 袁志明, 袁麒竣, 袁麒傑 and 袁偉豪. 袁澍銘 and 袁志明 passed away on 9 February and 3 September 2021 respectively.  Membership of the 2 Tsos is and has been challenged by objectors.

10.  The last registered manager of the 2 Tsos was Mr Yuen Kwok Yan, who was registered on 22 October 1954 - he passed away on 31 December 1987.  At present, there is no more living manager of the 2 Tsos.  Without a manager, not only is section 15 NTO not complied with, but the 2 Tsos cannot handle matters relating to their landed properties such as taking legal action against squatters on their land, negotiating and entering into contracts such as leases, receiving rents, planning the development of the lands etc.

11.  On 18 August 2019, prior to the members’ meeting of the 2 Tsos, there was held a meeting of members of 袁觀德祖 to verify and approve the genealogy of 袁觀德 (who belonged to the 1st generation of the relevant Yuen Clan).  It was believed that once the genealogy of 袁觀德祖 was verified and approved, the genealogies of other bloodlines from 袁觀德 downwards including 袁煥宇(全有) would be verified and approved in the same exercise.  At the end of the meeting, members unanimously verified and approved the genealogy prepared by a committee as the one and only correct genealogy of 袁觀德祖 (“Verified Genealogy”). 

12.  As mentioned earlier, on 19 August and 16 September 2019, the Applicants made the 2019 Application.

13.  On 29 May 2020, when processing the 2019 Application, as part of the application procedure, official notices and membership lists were displayed calling for objections to the 2019 Application within 30 days from 29 May to 27 June 2020.

14.  During the 30-day period, Objections were received and the Applicants were informed on 25 June 2020;

15.  On 29 June 2020, the Applicants requested the Defendant to refuse to entertain those Objectors who could not prove their membership of the 2 Tsos or have sufficient locus standi.

16.  On 6 July 2020, the Defendant issued letters to the Objectors requesting for proof of their membership of the 2 Tsos and attempted to seek the Objectors’ consent to disclose their information to the Applicants for mediation, but none of the Objectors gave their consent and one of them expressly objected to the said disclosure of information.

17.  On 22 September 2020, a representative of the Applicants Mr Issac Lai met with the Defendant whereby Mr Lai was informed that (i) the 2019 Application was met with objections and there were disputes over the family trees/membership lists of the 2 Tsos;  (ii) the Defendant had over the years received different versions of family trees/membership lists of the 2 Tsos (“Previous family trees/membership lists”); as such, the Defendant was unable to ascertain the authenticity of the family trees/membership lists and could not approve the appointment of managers of the 2 Tsos; and (iii) the Applicants were advised to seek legal advice and consider applying to the Court for adjudication of the validity of the family trees/membership lists of the 2 Tsos so that the Defendant could further process the 2019 Application.

18.  In the intended Order 85 Proceedings, the Plaintiff will ask the Court to determine (1) the membership of the 2 Tsos in light of the Verified Genealogy and (2) whether any other objections against the 2019 Application raised by the Objectors and persons who submitted the Previous family trees/membership lists are substantiated.

19.  The Defendant accepts that it is in possession, custody and power of the Requested Information.

Deliberation

Legal principles

20.  The Defendant submits that the first cardinal principle of a Norwich Pharmacal application is that a serious tortious wrong or wrongdoing of any kind has taken place.  However much the jurisprudence of Norwich Pharmacal has evolved, it remains necessary to show “cogent and compelling evidence to demonstrate that serious tortious or wrongful activities have taken place”: A Co & B Co [2002] 3 HKLRD 111 at [13(1)], Ma J (as he then was). 

21.  A Co & B Co is of course a strong authority on the principles governing Norwich Pharmacal applications.  But it must be read in context which was that a very serious case of breach of fiduciary duty has been made out, a breach in which the defendant has become involved: A Co & B Co at [25].  It is a classic Norwich Pharmacal case and there was therefore no need for the learned Judge to consider whether further extension of the jurisdiction was necessary in that case. 

22.  Since 1974, the Norwich Pharmacal jurisdiction has been extended beyond cases where the applicant is able to demonstrate that a wrong had been committed.  As Lord Woolf CJ observed in Ashworth Hospital Authority v MGN Ltd [2002] 1 WLR 2033, at [57]:

“ The Norwich Pharmacal jurisdiction is an exceptional one and one which is only exercised by the courts when they are satisfied that it is necessary that it should be exercised. New situations are inevitably going to arise where it will be appropriate for the jurisdiction to be exercised where it has not been exercised previously. The limits which applied to its use in its infancy should not be allowed to stultify its use now that it has become a valuable and mature remedy. That new circumstances for its appropriate use will continue to arise is illustrated by the decision of Sir Richard Scott V-C in P v T Ltd [1977] 1 WLR 1309 …” (emphasis added)

23.  Incidentally, it was held in Ashworth Hospital Authority v MGN Ltd that it was not necessary for disclosure to be ordered that the claimant intended to bring legal proceedings against the alleged wrongdoer, provided that some other legitimate purpose in seeking disclosure was identified.  In that case, the legitimate purpose was the need to protect the integrity of the Hospital Authority’s medical records and its need to identify and punish the alleged wrongdoer.  The alleged wrongdoer was probably an employee of the hospital who had wrongfully disclosed a patient’s medical records to the press.

24.  In P v T Ltd [1997] 1 WLR 1309, it was held that where justice cannot otherwise be done, a plaintiff is entitled to discovery against a defendant in order to obtain information for use in bringing proceedings against a third party, even though it cannot be ascertained, without the information sought, that the third party has committed a tort against the plaintiff.  In other words, discovery under the Norwich Pharmacal jurisdiction is permissible to ascertain whether a cause of action exists if justice so demands.

25.  In P v T Ltd, the facts were that a plaintiff sued his former employer for an order that the employer do disclose precise details of allegations made against him which formed the basis for his dismissal and the identity of the person who made the allegations so that he might use the documents and information so provided in an action against that person.  The plaintiff believed a tort has been committed against him although he was not in a position to make out the tort.  Nevertheless, relief was granted to the plaintiff since “justice demands that the plaintiff should be placed in a position to clear his name if the allegations made against him are without foundation”: per Sir Richard Scott VC at 1318E.

26.  More recently, in Evergreen International Storage and Transportation Corp [2008] 5 HKLRD 49, DHCJ Lisa Wong SC (as she then was), after a review of the authorities since Norwich Pharmacal, summarised the position as follows:

“59. The categories of information for which Norwich Pharmacal discovery can be ordered are not close. As said by Lord Woolf CJ in Ashworth Hospital Authority v. MGN Ltd [2002] 1 WLR 2033 (HL) at p.2049, §57, using P v. T Ltd as an illustration, new situations are inevitably going to arise where it will be appropriate for the jurisdiction to be exercised where it has not been exercised previously.

60. In an appropriate case where it is necessary in the interests of justice, Norwich Pharmacal discovery can be obtained, not on the basis of an actual tort, but to find out if a wrong had been committed against the applicant and if so, the precise nature of the wrong.

61. This, I believe, is not inconsistent with the summary of principles by Ma J in A Co v. B Co [2002] 3 HKLRD 111 at p.117G-H, §13(1), one of which is the requirement of cogent and compelling evidence that serious tortious or wrongful activities had taken place. I say so because in dealing with the defendant’s objection that the plaintiff before him was ‘fishing’ for information, Ma J drew attention to P v. T Ltd as an instance where the court ordered Norwich Pharmacal discovery notwithstanding the plaintiff’s inability to demonstrate to the court’s satisfaction the factors he referred to at p.120F-H, §13 of his judgment.

62. However, this is not to say that Norwich Pharmacal discovery to verify wrongdoing is to be lightly ordered. Orders for this purpose must by their nature be exceptional and rare. Although the applicant is essentially not in a position to show a prima facie case of wrongdoing and is acting on no more than a suspicion that wrongdoing may have been committed, such suspicion must be founded upon facts and circumstances which plausibly give rise to the suspicion and which the court can reasonably act on…” (emphasis added)

27.  On the facts of that case, the learned Deputy Judge found the applicant had failed to pass the “reasonable suspicion” threshold and dismissed the application.

Ground 1 - no tort or wrongdoing of any kind

28.  In the Defendant’s skeleton, Mr Chan submits that (a) the Objections were lawfully made and that (b) the Plaintiff has no prospect of establishing a wrong. 

29.  As an elaboration of (a), Mr Chan submits that, “[i]f the Plaintiff’s case is put to the highest, the Plaintiff can at most say that the Objections were somehow tainted by forged and unauthentic genealogies.”

30.  As far as (b) is concerned, Mr Chan submits that:

(1)  First, the Plaintiff does not represent the 2 Tsos and thus, he has no locus standi to lodge a tortious claim for and on behalf of the 2 Tsos.  Alternatively, the Plaintiff has put forward no evidence to show that the Objectors were mala fide objectors.

(2)  Second, the Plaintiff has no basis to argue that the Objectors interfered with the actions of the Defendant in relation to the Plaintiff because the Defendant has yet to make a decision on the 2019 Application, and thus, even if the Defendant has taken into account of the Objections, the 2019 Application is still in process.

(3)  Third, the Plaintiff has no basis to argue that the Objectors has any ill-intent to cause loss to the Plaintiff. 

(4)  Fourth, the Plaintiff’s submissions at para 80 of his skeleton that he has incurred damage is merely speculative and unsupported by any evidence. 

31.  With respect, these submissions are wholly misconceived and this court is not satisfied that the Plaintiff has no prospect of establishing a wrong. 

32.  To start with, if it is to be found out that the Objections were somehow tainted by forged and unauthentic genealogies, it is difficult to see how the Objections can be said to have been lawfully made.  Second, the Plaintiff is not purporting to lodge a claim for and on behalf of the 2 Tsos - he could not do so until his appointment is approved and registered under section 15 NTO.  The Plaintiff is seeking to lodge a claim on his own behalf, as shall be explained below.  Third, the Objectors did interfere with the action of the Defendant in relation to the 2019 Application, not because the Defendant has rejected the application, but precisely because the Objectors had caused the Defendant to delay in making a decision on the 2019 Application for an indefinite period of time until the Court intervenes.

33.  Mr Yim for the Plaintiff submits that the Objections must have contained allegations that the Applicants are not eligible or suitable persons to be appointed as managers of the 2 Tsos and that the Objections must have been apparently serious enough to impede the Defendant’s decision to approve their application to be registered as managers of the 2 Tsos.  While Mr Yim may have pitched his case higher than is necessary, this court agrees it is reasonable to suspect that were the case.

34.  As far as the wrong is concerned, Mr Yim submits the Plaintiff has an arguable case that inter alia the Objectors have committed the tort of unlawful interference, by which this court takes it to mean causing loss by unlawful means, as the tort is commonly known.  Concentrating on the tort of causing loss by unlawful means, the key conditions of liability, where three parties are involved, are (i) an intention to cause loss to the claimant, (ii) use of “unlawful means” against a third party, and (iii) interference with that third party’s freedom to deal with the claimant: Clerk & Lindsell on Torts (23rd ed) at para 23-78.

35.  On the Plaintiff’s evidence, one known objector is a Yuen Hoi Sum (“HS Yuen”).  Since 2001, he has produced different, irreconcilable versions of purported genealogy of the Yuen Clan to the Defendant in order to challenge the membership of any potential managers of the 2 Tsos.  HS Yuen’s purported genealogies of the Yuen Clan were usually verified by two elders and himself only.  At times, he claimed himself to be a member of the 2 Tsos, but at other times he claimed himself to be a member of 袁超凡祖.  According to the Plaintiff, HS Yuen is not a member of the 2 Tsos, yet since 2001, he has practically objected to each and every application for approval of the appointment and registration of managers of other Tsos of the Yuen Clan in Hong Kong.  By reason of inter alia HS Yuen’s challenges with various versions of genealogies of the Yuen Clan in the past 20 years which were never withdrawn, the North District Office (“NDO”) has not accepted the membership list of the 2 Tsos submitted by their members. 

36.  As Mr Chan acknowledges, putting the Plaintiff’s case to the highest, the Plaintiff can say that the Objections were somehow tainted by forged and unauthentic genealogies.  That is at least prima facie an unlawful means and as a matter of fact has interfered with the Defendant’s freedom to deal with the 2019 Application for the last 3 years and the application is still in limbo. 

37.  As for intention to cause loss, it is difficult to see what other intention the Objectors might have while (i) on the one hand, failing to attend the 18 August 2019 meeting to put themselves forward as members of the 2 Tsos (if that were the case), were eligible and suitable to act as managers of the 2 Tsos or at least raised their Objections at that meeting and (ii) on the other hand, raising the Objections only after the Plaintiff and Yuen were unanimously elected.  In consequence, the 2 Tsos are powerless to deal with their landed properties without a manager.  Their action is obstructive, not constructive.  If so, an intention to cause loss can readily be inferred.  If the Objectors were not members of the 2 Tsos, their intention to cause loss is even more apparent.

38.  As for the loss itself, since the passing away of Yuen Kwok Yan in 1987, there is no more living manager of the 2 Tsos.  Without a manager, the 2 Tsos cannot handle matters relating to their landed properties such as taking legal action against squatters on their land, negotiating and entering into contracts such as leases, receiving rents, planning the development of the lands etc.  The inability of the 2 Tsos to deal with their landed properties without a manager obviously causes loss to the Plaintiff since it harms the economic interests of all members of the 2 Tsos, including the Plaintiff himself. 

39.  In these circumstances, this court is of the view that the “reasonable suspicion” threshold has been met in relation to the tort of causing loss by unlawful means.

40.  Even if, contrary to this court’s view, the Plaintiff fails to meet the “reasonable suspicion” threshold, this court is still of the view that there is jurisdiction to grant Norwich Pharmacal relief in this case.  This is because the Plaintiff has a legitimate purpose in seeking disclosure from the Defendant and justice demands the Court should come to the assistance of the Plaintiff.  The legitimate purpose in this case is to resolve the, actual or perceived, uncertainties of the membership of the 2 Tsos, to enable the Defendant to process the 2019 Application, and if approved, to enable the 2 Tsos, via their managers, to deal with their landed properties in the New Territories and all matters relating to the Tsos.  Since land is and has always been a precious commodity in Hong Kong, allowing the 2 Tsos’ land to be left idle for years is not only detrimental to the interests of the members of the Tsos themselves, but also against public interest.  Further, in so far as the Objections contain allegations that the Applicants are not eligible or suitable persons to be appointed as managers of the 2 Tsos, they are entitled to know what the Objections are and be placed in a position to clear their names if the allegations against them are unfounded.  The Plaintiff’s situation is not dissimilar to the cases of Ashworth Hospital Authority v MGN Ltd or P v T Ltd.

41.  Since only the Defendant is in possession, custody and power of the Requested Information, justice cannot be done without disclosure by it. 

42.  For these reasons, Ground 1 is wholly unmeritorious and must be rejected.

Ground 2 - Defendant is a mere witness to the alleged wrong

43.  At paras 32 and 33 of the Defendant’s skeleton, Mr Chan submits that even if the Plaintiff hypothetically establishes that the Objectors were the ultimate wrongdoers who have caused loss and damage to the Plaintiff, he still has no evidence to show the Defendant was somehow involved or mixed up in the Objectors’ decision-making [1]. Merely because the Defendant is the approving authority of section 15 NTO applications does not render it more than a “mere witness” of whatever mischief that the Plaintiff alleges that the Objectors were conducting.

44.  This court is conscious that, as a matter of principle, a Norwich Pharmacal order should not be made against a “mere witness”.  The question here is the scope of the so-called mere witness rule.  But one thing is clear: there is no absolute rule that such an order could not be made against someone who was not “mixed up” or “involved” in, or did not “facilitate” the alleged wrongdoing, even though the traditional formulation of the Norwich Pharmacal jurisdiction is that in order to make such an order against a third party, that third party must be mixed up in so as to have facilitated the wrongdoing.  As Chow J (as he then was) observed in Leung Yiu Ting v MTR Corp Ltd [2020] 5 HKC 550 at [17]:

“ … This point is clearly explained in the judgment of Mann J in Various Claimants v News Group Newspapers Ltd (No 2) at [52] and [54]:

‘[52] If a participation or facilitation test were the sole test, incapable of expansion, Miss Rose would be correct. However, I do not think that it is the sole test. It is true that the traditional formulation of the test is in such terms, but that is because those are the usual circumstances in which someone becomes something beyond a mere witness. On the facts of the cases where orders were made, the respondent was usually in that position. In my view the answer to the question lies in recognising that what the cases are doing is contrasting two things - the mere witness on the one hand, and a person who is not a mere witness on the other. On the cases the latter class is generally described in terms of participation/facilitation, as though that were the opposite of being a mere witness. But the real analysis lies in appreciating that the courts are holding not that those factors are indeed the other side of a dichotomy, but that those factors prevent the respondent from being a mere witness. Once that is recognised then it becomes relevant to consider whether there are other facts, short of participation/facilitation, which could prevent a person from being a mere witness. That question has not arisen in the cases in terms, but since the real question is the scope of the mere witness rule it is relevant to consider that particular question. It has been made to arise in the present case because of its unusual facts.

[54] I therefore turn to consider the relevant question which is not whether the MPS have participated in, or facilitated, or been involved in the actual wrongdoing in this case. It is whether the MPS is a mere witness (or metaphorical bystander) or whether its engagement with the wrong is such as to make it more than a mere witness and therefore susceptible to the court’s jurisdiction to order Norwich Pharmacal disclosure.’” (emphasis added)

45.  In Various Claimants v News Group Newspapers Ltd (No 2), the police investigated allegations that the proprietor of a national newspaper had intercepted and listened to the mobile telephone messages of a considerable number of individuals.  The police adopted the practice of informing apparent victims that they had been targeted and providing them with basic information about the matter.  The applicants were people who had been so informed and who had either commenced proceedings against the newspaper proprietor and others, or who were considering doing so.  Since most or all of the information which the applicants required in order to assess the strength of any claim they might have, or fully to plead a claim already commenced, was in the possession of the police, the applicants sought an order against the police for disclosure of that information. 

46.  Mann J granted the application even though the police was obviously not “mixed up” or “involved” in, or did not “facilitate” the wrongdoing.  At [55], the learned Judge explained his decision in this way:

“ … The MPS is not like someone who happens to witness an offending act and who thereby acquires relevant information. It is someone whose duty it is to acquire information about the offending act, albeit not for the benefit of victims. That may not by itself be sufficient—I do not have to decide that. What needs to be added is the fact that the MPS has actually provided information which, if a mere witness (bystander) it would not have had to have volunteered. It did so by informing victims that they were victims, and then disclosing a limited amount of information whilst informing them that there was more. It has also indicated that it did so as a result of some sort of unspecified obligation (or feeling that it ought to) and then agreeing, in principle, that it would not resist a formal claim for the information to a greater extent and in a more durable (and reliable) form. All those factors, when combined, mean that the MPS is not a mere witness.”

47.  In the present case, the Defendant, in the discharge of its statutory duties to handle section 15 NTO applications, displayed official notices and membership lists calling for objections to the 2019 Application within a 30-day period.  During the 30-day period, Objections were received and the Applicants were so informed.  On 29 June 2020, the Applicants requested the Defendant to refuse to entertain those Objectors who could not prove their membership of the 2 Tsos or have sufficient locus standi.  On 6 July 2020, the Defendant issued letters to the Objectors requesting for further evidence in support of their objection and attempted to seek the Objectors’ consent to disclose their information to the Applicants for mediation.  On 22 September 2020, a representative of the Applicants Mr Issac Lai met with the Defendant whereby Mr Lai was informed that (i) the 2019 Application was met with objections and there were disputes over the family trees/membership lists of the 2 Tsos;  (ii) the Defendant had over the years received Previous family trees/membership lists, as such, the Defendant was unable to ascertain the authenticity of the family trees/membership lists and could not approve the appointment of managers of the 2 Tsos; and (iii) the Applicants were advised to seek legal advice and consider applying to the Court for adjudication of the validity of the family trees/membership lists of the 2 Tsos. 

48.  On these facts, even assuming for the sake of argument that the Defendant could not be described as being involved in or has facilitated the alleged wrongdoing of the Objectors, it is clear to this court that the Defendant is more than a “mere witness” in the same way that the police in Various Claimants v News Group Newspapers Ltd (No 2) is more than a “mere witness”.  Paraphrasing the words of Mann J, the Defendant is not like someone who happens to witness an offending act and who thereby acquires relevant information.

49.  For these reasons, Ground 2 is unmeritorious and should equally be dismissed. 

Ground 3 - disclosure unnecessary and disproportionate

50.  In the Affidavit of Ip Yuk Mei dated 19 November 2021 (“Ip 1”) at para 12, Madam Ip said this:

“12. If any objection is received within 30 days from the date of notice, the case will be passed to the subject officers for investigation and mediation. As a general rule, only reasonable objections raised by members of the subject tso/tong will be considered. Letters will be issued to the objectors requesting them to provide proof / evidence to show that they are a member of the subject tso/tong and ask for their consent to disclose their identity to the applicant(s) for the purpose of mediation. Effort will be made by the DO to reach a decision as to whether the objections should be overruled, and whether the application should be approved or rejected.” (emphasis added)

51.  On the necessity of disclosing the identity of the Objectors, Mr Yim submits that the identities of the Objectors are necessary as they shed light on the question of their locus standi – if they fail to show they are bona fide members of the 2 Tsos, then their objections need not be entertained by the Defendant, in accordance with what Madam Ip said in the passage quoted above.  A ruling on the Objectors’ locus standi by the Court in the Order 85 Proceedings will greatly assist the Defendant in accepting or dismissing the Objections.  This per se will bring finality to the Objections and relative certainty to the appointment of the Applicants as managers of the 2 Tsos, in the event the Court rules that the Objectors have no locus standi to object.  There is force in that submission.

52.  Further, it seems to this court necessary that all the Objectors, or at least some representatives of the Objectors, should be joined as respondents in the Order 85 Proceedings so that they can assist the Court in the determination of the membership of the 2 Tsos, by giving evidence of their objections, if so advised, and be bound by the Judgment in the Order 85 Proceedings.  In this regard, it is unrealistic for Mr Chan to suggest that the Court in the Order 85 Proceedings can confidently determine the membership of the 2 Tsos in light of the Verified Genealogy and whatever membership lists provided by the Plaintiff to the Defendant alone, without knowing what other allegedly authentic family tree/membership lists have been provided by the Objectors to the Defendant as well as the Previous family tree/membership lists.  The Court hearing the Order 85 Proceedings will also need to know what other objections, if any, the Objectors may legitimately raise against the Applicants.  After all, our legal system is adversarial and not inquisitorial.

53.  Further, all or at least some representatives of the Objectors should be joined in the Order 85 Proceedings so as to prevent the potential abuse of the process of the Court by the Objectors re-litigating questions or issues which ought to have been raised in the Order 85 Proceedings in the event that they are dissatisfied with the Court’s decision.

54.  For these reasons, this court has no doubt that provision of the identities and addresses of the Objectors by the Defendant is necessary and proportionate in the exercise of the Norwich Pharmacal jurisdiction.  If the Plaintiff only wishes to join all or some representatives of the Objectors in the Order 85 Proceedings, it would suffice if the Defendant provides their addresses so that the Objectors can be served.  At the moment, this court is not convinced that the Plaintiff would need to know the telephone or fax numbers of the Objectors and is not minded to order their disclosure.

55.  As for the particulars of the Objections, as this court sees it, they will assist the Court hearing the Order 85 Proceedings to resolve some of the doubts of the Defendant in processing the 2019 Application.  This will ultimately assist the Defendant in the discharge of its statutory duties.  It is incomprehensible that the Defendant would wish to resist disclosure when it is its manifest intent to further process the 2019 Application after the Court’s decision in the Order 85 Proceedings.  Indeed, at para 26 of Ip 1, Madam Ip stated that:

“ … the Plaintiff’s requested scope of disclosure at paragraph 1(1) of the Originating Summons should be narrowed down and confined to disclosure of the Objectors and their written Objections relating to the Application only.[2] Further, I have been advised by the Defendant’s legal advisers and verily believe that in the circumstances it is unnecessary for me to ‘provide with full particularity all the grounds relied upon by each of the Objectors in the Objections’ as set out at paragraph 1(2) of the Originating Summons, because such grounds have already been set out in full in the written Objections NDO received from the Objectors.” (emphasis added)

56.  At para 27 of Ip 1, Madam Ip reiterated that:

“… if the Court is minded to allow the Plaintiff’s application for a Norwich Pharmacal order, it would suffice for the Defendant to provide the Plaintiff with copies of all written Objections received in relation to the Application. …”

57.  If and in so far as the Objectors have only submitted written Objections to the Defendant, then of course it is sufficient for the Defendant to disclose those written Objections.  However, if the Objectors have supplemented the written Objections with oral ones, this court does not see why the Defendant should be permitted to choose to disclose the one but not the other.  If it is the case that all the grounds have already been set out in full in the written Objections, as Madam Ip claims in para 26 of Ip 1, then disclosure would not be burdensome at all to the Defendant - it can simply say so in the affidavit giving disclosure.

58.  Lastly, the Defendant appears to express concern at para 43 of Mr Chan’s skeleton that disclosure of the Requested Information would “compromise the issue of confidence” because the Defendant had expressly requested for the Objectors’ consent to release it and the Objectors did not consent to the same. The Defendant then submits at para 44 that when considering proportionality, this court should take into account inter alia the Defendant would be compromising the confidence of the Objectors.  The short answer to this point is that in the ordinary course of events, the suspected wrongdoers seldom if at all consent to the disclosure of information relating to them and their suspected wrongdoings.  Yet, if the Court is satisfied that the Norwich Pharmacal jurisdiction exists and that it is otherwise necessary and proportionate to exercise it, the lack of consent of the suspected wrongdoers cannot be such a weighty factor as to override the demand of justice to exercise the jurisdiction.  Otherwise, the Court will seldom grant a Norwich Pharmacal Order.  But the abundant authorities on the subject show that is not the case.

59.  For these reasons, it seems to this court that disclosure is necessary and proportionate.  Ground 3 should also be dismissed.

Disposition and costs order nisi

60.  There shall be an Order in terms of paragraphs 1 and 2 of the OS, save and except that the Defendant need not disclose the telephone or fax numbers as stated in paragraph 1(1).

61.  There shall also be an order nisi that costs of the OS be to the Defendant, to be taxed if not agreed, and paid by the Plaintiff forthwith, as suggested in paragraph 3 of the OS, certificate for 1 counsel.