WONG DIN SHIN v. NINA KUNG

HCAP8/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO.8 OF 1999

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REASONS FOR DECISION (2)

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1. The defendant applied for an order that an expert witness, Mr Erich Speckin, be compelled to : -

(1) furnish the Court with records of his academic results obtained by him during the course of his undergraduate programme at Michigan State University, in respect of which he has claimed confidentiality including any information that would normally be considered as Directory Information by the said University; and

(2) answer any questions in relation thereto.

2. Mr Clive Grossman, SC, who appeared with Mr Ramesh Sujanani and Ms Alice Lee for the defendant, submitted that such records and/or information are relevant to the issues of the extent of Mr Speckin's qualifications as a chemist and his overall credibility.

3. The defendant's aforesaid application was met with opposition from the plaintiff's counsel, Mr Edward Chan, SC appearing with Mr Albert Tsang and Mr Victor Luk, and also Mr Speckin's counsel, Mr Ambrose Ho, SC appearing with Mr Michael Yin. I have accepted the submissions of both counsel for the plaintiff and counsel for Mr Speckin. I shall state my written reasons therefor herein below.

The jurisdiction to grant such an order

4. The court would have jurisdiction to make an order against a person within the jurisdiction compelling him to produce certain documents to the Court. The rule is now embodied in Order 38, rule 13 of the Rules of High Court : -

"Order 38 rule 13

Order to produce documents at proceeding other than trial

(1) At any stage in a cause or matter the Court may order any person to attend any proceeding in the cause or matter and produce any document, to be specified or described in the order, the production of which appears to the Court to be necessary for the purpose of that proceeding.

(2) No person shall be compelled by an order under paragraph (1) to produce any document at a proceeding in a cause or matter which he could not be compelled to produce at the trial of that cause or matter."

5. Thus, it must be shown that the order for production must be necessary for the purpose of the proceeding before me. It is also implicit in the wordings of Order 38, rule 13(2) that the test of whether a non-party, including a witness, is to be ordered to produce any document is whether he could be compelled to produce the documents if a proper subpoena for that document had been served on him.

6. In Macmillan Inc. v. Bishopsgate Investment Trust Plc. [1993] 1 WLR 1372, the Court of Appeal in England adopted this approach of testing whether a witness in cross-examination should be ordered to produce copies, which he has in his possession, of the transcripts of his private examination concluded under section 236 of the Insolvency Act 1986, by the liquidators of a company which was not a party to the action. The Court dealt with the question on the assumption that a subpoena duces tecum had been duly served on the witness requiring him to produce the transcripts and the matter was dealt with on the basis of the witness applying to discharge that subpoena (see pages 1372H, 1373G and 1374C).

7. In Macmillan case, the order for production of the documents was opposed on, inter alia, the ground that the application for production was speculative. The Court of Appeal did not find it necessary to deal with other grounds like public interest and restriction on production (see pages 1373H-1374B). The court went through the authorities and also the provisions of Order 38, rule 13 relating to the production of documents and re-affirmed the rule that the test for compelling a witness to produce documents under a subpoena duces tecum should be the same as that under Order 24, rule 13, namely that the order is necessary either for disposing fairly of the cause or matter or for saving costs (see page 1375A-C). The crucial point, as stated herein before, is that it must be shown that the order for production must be necessary for disposing of the cause.

8. In Macmillan case, the applicant could only inform the court that the transcripts applied for may contain some helpful answers upon which the applicant may wish to rely, the judge refused to grant the order. The hope that the transcripts may contain some inconsistent statements of the witness is plainly not sufficient to justify the application (see page 1375E-H). The applicant further contended there was a measure of possible materiality and that the liquidators may have some information in the files which would enable him to put questions to the witness which information was not available to the applicant and the transcripts could thus give the applicant lines of inquiry (see page 1377B-E). The Court of Appeal held that all these were merely justifications for discovery against the party and were not sufficient to justify the making of the order. Sir Roger Parker (at page 1378G) said that the application would have to be rejected on two grounds : first, because it was plainly a fishing expedition and, second, because it was not shown that the production of the documents was necessary for disposing of the matter.

9. If a subpoena is challenged, the burden is on the party who caused the subpoena to be issued to show that the documents to which the subpoena relates are necessary for the fair disposal of the case. If the description of the documents on the subpoena is too general it will also be set aside. (See Sunderland Steamship P. and I. Association v. Gatoil International Inc. [1980] 1 Lloyd's Rep 180, per Steyn J. at page 184.)

10. In the application herein, the defendant asked for records of academic results "in respect of which Mr Speckin has claimed confidentiality including any information that would normally be considered as Directory Information by that University". What took place at the trial was that the witness had exercised a right under US law which prevented the University from disclosing all information about him to the extent that it was permitted by the US law. Those pieces of information may or may not be of any relevance even to the question of credibility of Mr Speckin. I accept the submissions of both counsel for the plaintiff and counsel for Mr Speckin that the defendant has not shown to the Court that the information requested is relevant.

11. It is not permissible to obtain discovery from a non-party when the documents are only relevant to or are only intended to be used for the purpose of testing the credibility of a party or witness as decided in the Macmillan case cited herein before.

12. Mr Speckin was put forward as an expert witness on ink dating and not as a general chemist. It is plain from the evidence before the Court that his expert training in this area was not so much through the University but through the training by one Mr Brunelle and his own subsequent experience since he had completed the training. His paper on ink dating, being course 419 of the degree course, was in fact a course of independent study and this has been investigated already in cross-examination. There was no claim that any of the techniques used in the ink dating test in this case was acquired in any other University courses. No doubt his general ability as a chemist is also relevant in the sense that the test in the case would involve the general technique in handling tests and experiment in chemistry. There is, however, clear evidence from video tapes and also from the actual observation from the defendant's own expert as to how he conducted the test and examination. Whether Mr Speckin had obtained a distinction or a bare pass or anything in between in those subjects or courses in his degree, could not be of any real assistance to the Court in deciding whether to accept his evidence on his ink dating result in this case. Hence information such as his background chemistry training as a chemist is at the most only of very marginal probative value. In any event, the law does not demand any formal training or qualification in order to qualify a person to give expert evidence (see Phipson on Evidence 15th edition, paragraphs 37-46).

13. Further, whether a mere witness can be compelled to produce document has been considered in Attorney General v. Wellcome Foundation Ltd. [1992] 1 HKC 158. At pages 169G-170A, Litton JA said : -

"The Law has long distinguished the position of parties to litigation (against whom extensive discovery orders can be made) and the situation of 'mere witnesses'. As to the latter, the courts have been reluctant to subject them to the compulsive processes of law unless the interest of justice clearly so demands. See, for instance, Harrington v N London Polytechnic [1984] 1 WLR 1293, 1299F-G :

whilst there is a public interest in achieving justice between disputing parties, there is also a public interest in not involving third parties if this can be avoided. It was the resolution of this conflict which gave rise to the 'mere witness' rule which was considered in the Norwich Pharmacal case [1974] AC 133. That rule was stated by Lord Kilbrandon, at p 203:

'You cannot get discovery against someone who has no connection with the litigious matters other than that he might be called as a witness either to testify or to produce documents at the trial.'"

14. I understand I also have a discretion to grant the Order but in the case before me, I cannot see how the interest of justice clearly demands that Mr Speckin should disclose his academic results obtained by him during the course of his undergraduate programme at Michigan State University. The documents and/or information being sought by the defendant are in effect privileged from production under the law of the United States of America. There is no prospect of the defendant being able to enforce in the USA an order for production against either Mr Speckin or the University of Michigan. It is the University who is the party actually in possession of the documents and/or information being sought by the defendant. The defendant is in effect seeking to enforce an order for production against the University indirectly by seeking an order against Mr Speckin. Therefore, I refuse to exercise my discretion to compel Mr Speckin to furnish with his records of his academic results which I cannot see any relevance and necessity to the issue in the case before me.

15. Having refused the application of the defendant, I cannot see any reason why I should depart from the general rule that costs shall follow the event. The defendant shall have to bear the costs of the plaintiff (with certificate for three counsel) and Mr Speckin in any event. Since solicitors and counsel instructed by Mr Speckin shall have no further dealings with the present case, their costs shall be taxed and paid forthwith. There shall be an order nisi of costs to the aforesaid effect.