XCHRX PACIFIC LINK COMMUNICATIONS LTD. v. RYODEN LIFT AND ESCALATOR CO. LTD. AND OTHERS

HCA 7987/97, 9571/97, 13109/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 7987, 9571 & 13109 OF 1997

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R U L I N G

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1. The two amended writs of subpoena duces tecum were reissued with leave on 15 August 2001. Mr. Wesley Wong, counsel for the Commissioner of Police, does not seek to discharge or vary the amended writs of subpoena duces tecum. He also does not object to the production of the listed documents. Instead, he has very fairly and properly drawn the court's attention to the matters which he has submitted the court should take into account as set out in his submissions.

2. The plaintiffs in these actions seek the production of the documents listed in the amended schedule to the amended writs of subpoena duces tecum. The statements of the witnesses listed under item no. 1 of the amended schedule were taken by the police on divers dates from November 1996 to February 1997. Those statements were taken after the fire that broke out on 20 November 1996 on or about the second floor of Garley Building in Nathan Road, Kowloon. The fire soon spread rapidly to the upper floors of the building through the empty lift shafts of the building. About 81 people were either killed or seriously injured as a result of the fire and there was also extensive property damage as well. A large number of civil actions have been instituted as a result of the fire.

3. The witnesses listed in item no. 1 are witnesses of fact save for one of them namely, Siu Lik Hung. As the affidavit of Mr. Mark Roberts shows, the witnesses can provide relevant evidence of factual matters as to what happened at Garley Building at the time of the fire.

4. A Commission of Inquiry was established into the Garley Building fire on 17 December 1986 and Mr Justice Woo (as he then was) was appointed Commissioner. The ruling given by the Commissioner on 3 February 1997 has been drawn to my attention. By his ruling the Commissioner ordered, inter alia, disclosure of materials including the witnesses' statements to the parties concerned in the inquiry. In dealing with the concern of some of the witnesses the Commissioner said at pg. 4 of his ruling as follows:

"I well appreciate that the witnesses who have made known to me their objection to disclose the statements must have their reasons. They may feel being betrayed because when they provided their statements they made clear that they did not wish their statements to be disclosed. They may wish to forget about the tragic and frightful incident, or they may have a number of other reasons to insist on their objection. However, on the final analysis, I do not think it proper to accede to their wish, for the sake of justice and fairness. The law gives priority to fairness over confidence and convenience."

5. The Commissioner's order for disclosure was subject to an undertaking given by the parties concerned in the inquiry. This was recorded at pg 5 of the ruling as follows:

"..... the information obtained by any person through the disclosure should not be used by him other than for purposes directly related to the inquiry. The parties have through their legal representatives given me an undertaking to that effect."

6. He also recorded an undertaking that the personal particulars of the statement maker were to be obliterated from the statements disclosed, including his addresses, age, occupation if irrelevant, marital and family status, identity card number and telephone or contact numbers.

7. The effect of s. 7 of the Commission of Inquiry Ordinance (Cap. 86) is that the evidence given by the witnesses shall not be admissible evidence against them in civil or criminal proceedings. By seeking production of the witness statements the plaintiff is not seeking to make use of the evidence contained therein against the makers of the statements in the civil proceedings. So s. 7 is not a reason for refusing production.

8. Mr. Wong correctly submitted that in making an order for production of documents especially against non-parties, the court must be satisfied not only that the documents in question are relevant but also that production is necessary for the fair disposal of the proceedings before it.

9. I am satisfied that the statements from the witnesses of fact taken by the police as listed in item no. 1 to the schedule to the amended writs of subpoena are relevant to the issues in the action save for the witness Siu Lik Hung. It was also submitted on behalf of the plaintiff that without the statements no plaintiff will be able to prove its case as to liability. That being so, I am satisfied also that they are necessary for the fair disposal of the proceedings. I agree with Mr. Burns, counsel for the plaintiffs, that it is not necessary for the court to inspect the individual statements.

10. Although some of the witnesses expressed a wish that their statements remain confidential it is well recognized that confidentiality is not a separate head of privilege. There is no claim to legal professional privilege. It also cannot be suggested that the witnesses are to be treated as informants where there is a public interest to protect the identity of informants.

11. It is important to bear in mind that the identity of the witnesses and the contents of their evidence given in the inquiry are now matters of public knowledge. The interim and final reports of the Commission of Inquiry were published to the public at large. All the individuals who had made statements and which were admitted into evidence were listed in the interim published report. Both the interim and the final reports show what facts and matters were contained in the statements. In such circumstances the witness statements can no longer be regarded as confidential.

12. It seems to me that there are two competing public interests. There is the public interest in the proper administration of justice by making all relevant material available to litigants which is necessary for the fair disposal of the proceedings. Then there is the competing public interest in not harming society as a whole by disclosing documents which would inhibit the free flow of information to public authorities.

13. It is important also to bear in mind that here there is no claim for public interest immunity made by the Commissioner of Police. I agree with Mr. Burns that unless such a claim is made the court is not concerned with a balancing exercise of the competing public interests (see para. 8.68-69 Matthews and Malek on 'Discovery'). However, if it is appropriate to conduct the balancing exercise I am satisfied that the public interest in the production of the documents far outweighs any public interest in withholding them.

14. Mr. Burns has rightly reminded me that there is no application made to discharge or vary the amended writs of subpoena duces tecum which have already been issued. I see no valid reason why the amended writs of subpoena should not stand save for the statements of Siu Lik Hung.