LEUNG KAM CHUNG KENNETH v. COMMISSIONER OF POLICE

HCA 1936/2021

[2024] HKCFI 1866

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1936 OF 2021

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D E C I S I O N

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Background

1.  This is the appeal of the Plaintiff (“Dr Leung”) against a Master’s decision refusing to grant him leave to compel witnesses to give evidence or to disclose the name of a potential witness.

2.  In this action, Dr Leung claims against the Defendant (“CP”) for property damage allegedly sustained in a fire caused by misfiring by policemen of 2 tear gas submunitions into his clinic-cum-residence in Austin Avenue (“the Premises”) on 18 November 2019. 

3.  CP denies liability although he admits that the police had fired tear gas at low angle towards protestors at the centre of the road.  CP alleges that the protestors did not disperse but kept moving forward and throwing objects towards the police checkline.  The police officers also noticed that the tear gas munitions and submunitions were picked up and thrown back towards the police checkline by the protestors.  The police has “no knowledge as to how the 2 tear gas submunitions broke through one of the windows of the Premises as alleged”. 

4.  By a Summons dated 11 January 2024 (“the Summons”), Dr Leung applied for disclosure of the names of 2 police officers and leave to issue subpoenas to 10 witnesses to attend the trial, i.e. CP, 3 police officers, 4 fire service officers (FSD officers) and 2 civilians. 

5.  Ms Chao, counsel for DOJ, informs this Court that at the hearing before Master Ho, Dr Leung confirmed that he would issue witness summonses to call the FSD officers (whom DOJ did not act for) after trial dates are fixed.  That dealt with items (2) to (5) of the Summonses.

6.  Master Ho also gave leave to Dr Leung to file and serve witness statements of the 2 civilian witnesses who were willing to give evidence, and leave to CP to file and serve witness statements in reply.  That dealt with items (9) and (10) of the Summons.

7.  After hearing arguments, Master Ho

(1)  Dismissed items (1) and (8) of the Summons; and

(2)  Made no order as to items (6) and (7); and

(3)  Ordered Dr Leung to bear half of the costs of the Summons but full costs of the hearing.

8.  Dr Leung appeals against the decision on items (1), (7) and (8) (collectively, “the 3 Items”) and costs.  These items seek:

(1)  To compel CP to provide a witness statement and if necessary to subpoena him to give evidence at the trial;

(7)  To compel CP to disclose the name of the police constable who fired the shot which caused 2 tear gas submunitions to break the windows of the Premises.

(8)  To compel a police constable by the name of Tsang Hung (“Constable Tsang”) who applied for a search warrant to retrieve the 2 spent tear gas submunitions from the Premises on 13 January 2020 to provide a witness statement and if necessary to subpoena him as a witness at the trial.

Dr Leung does not appeal against item 6.

9.  Dr Leung’s  grounds as stated in the notice of appeal are that:

(1)  The Summons was a discussion regarding the potential of applying for leave to subpoena witnesses and not a summons at all because the trial dates have not been fixed.  No order needed to be made.  Master Ho should have treated the matter in the same way as he treated the request for the FSD officers to come forward as witnesses later on in the trial, but he prematurely made the order as regards (a) CP and (b) Constable Tsang (“premature order ground”).  This issue can be further split into the issue of the appropriateness of calling these 2 witnesses (“CP ground” and “Constable Tsang ground”, respectively).

(2)  Master Ho did not explain why it was not necessary to disclose the name of the constable who misfired the tear gas submunitions into the Premises and initiated a disastrous fire outbreak (“name of constable ground”)

(4)  The award of costs was erroneous and premature due to the “improper and premature erroneous orders”.  Instead, Dr Leung should be granted costs as the application to file witness statements of 2 civilian witnesses was granted without objection of CP (“costs ground”);

(5)  The Court should look into the judicial conduct of Master Ho for his improper behaviour of ignoring the written and undeniable evidence presented to him regarding the highly suspicious issue of CP having committed the crime of perjury in making and filing his skeleton submission in reply dated 23 February 2023, the serious nature of the alleged issue having been acknowledged by Au-Yeung J in a prior decision handed down on 19 September 2023 (“Master’s conduct ground”).

10.  If his appeal on the 3 Items is allowed, Dr Leung seeks an order that:

(1)  the Court “requests” each of CP, Constable Tsang and the unidentified constable to come forward as a witness now and provide a witness statement;

(2)  if they refuse, Dr Leung reserves his right to apply for leave to issue a subpoena against them when the trial dates are known.

11.  CP opposes all of the 3 items on the ground that Dr Leung’s application was an abuse of process.

Legal principles on appeal against a Master’s decision

12.  An appeal against a Master’s decision operates by way of rehearing and the judge treats the matter as though it comes before her for the first time.  The judge will give the weight it deserves to the previous decision of the master but the judge is in no way bound by it.  See Hong Kong Civil Procedure 2024, Vol 1, §58/1/2.

13.  A judge in chambers will generally not allow an appeal from a master’s costs order unless the order was unreasonable or the master has erred in law: Hong Kong Civil Procedure 2024, Vol 1, §58/1/6.

Legal principles for granting leave to issue a subpoena

14.  Order 38, rule 14(5) of the Rules of the High Court (“RHC”) provides that there must be a note from a judge or a master authorizing the issue of a writ of subpoena before its issuance. 

15.  This is a filtering process by the court to ensure that the application for a subpoena is not an abuse of process.  The provision for requiring the attendance of a witness in chambers is to be contrasted with the issue of a subpoena for attendance of a witness in court which is issued as of right. See Li Man York Evelyn v Li Wai Tat Walton [1997] 3 HKC 532, §534C-D, CA.

16.  In general, a party is entitled to call a witness to give evidence on his behalf. If a witness is willing to assist, that party should have his witness statement prepared and exchange it with the other side.  If a witness is not willing to testify and the party has decided to subpoena him nonethess, he should inform the court and the other side at the case management conference.  He should apply to issue the subpoena once the trial dates are known.  See Big Island Construction (HK) Ltd v Wu Yi Development Co Ltd [2010] 2 HKC 356, §2-4, Poon J (as he then was). 

17.  Upon the issue of the subpoena, the other side should then decide if he wishes to apply to set aside the subpoena on grounds such as irrelevance of the witness’ evidence or that the trial will be unduly expanded beyond the issues raised in the pleadings and matters necessarily ancillary thereto.  Any setting aside application should be taken out as soon as possible.  All applications pertaining to the subpoena should be disposed of before pre-trial review.  See Big Island v Wu Yi, §4. 

18.  In the filtering process, the judge will ask himself such questions as: are the proceedings of such a nature as one would expect evidence to be called? Is this a cause or matter being heard in chambers in which oral evidence is appropriate? Is the application for a subpoena an abuse of process? Provided the answers to such questions are in favour of the applicant, he should give his note and grant leave. That filter process is one in which the judge should not and cannot take it upon himself to decide issues relating to the relevance of any evidence that may be given and its usefulness.” Li Man York, p.534 G– I.

19.  Witness summonses requiring the Prime Minister or other Ministers to attend to give oral evidence have been set aside on the ground of lack of good faith and relevance, particularly where the purpose of the summons is simply to embarrass the Government and question Ministers on irrelevant issues: §8-08 of Phipson on Evidence(20^th edn).

Premature order ground

20.  Dr Leung submits that he was merely putting forward discussions and not making a formal summons.  Master Ho was procedurally wrong and it was premature to have made his orders regarding CP and Constable Tsang.  He should have waited until a party has made a formal summons in the light of a fixed trial date.  No trial date has yet been fixed even as of today. 

21.  This submission is misconceived.  This was not the first time Dr Leung has issued a Summons.  If he really considered the application to be premature, he should not have issued the Summons in the first place.  The fact was that the Summons was issued as a summons with a hearing date and was supported by affirmation and submissions before Master Ho.  It was not for the purpose of holding a discussion.  It was not the Court’s function to hold a discussion per se but to make orders or give directions. 

22.  The order which Dr Leung seeks in paragraph 10(1) above is problematic.  The Court could not and would not request an officer of the administrative government to give evidence.  As made clear to Dr Leung at this hearing, the Court would either order (for good reasons) a person to give evidence or would not.  The situation was wholly distinguishable from that relating to the 4 FSD officers, who were not parties to this case nor represented by the DOJ and Dr Leung agreed to defer the issue of subpoena.  I therefore rule against Dr Leung on the premature order issue.

CP ground (Item (1))

23.  Dr Leung submits that:

(1)  CP needed to explain the pleas as to why “the Police have no knowledge as to how two tear gas submunitions broke through the windows of the Premises as alleged” and why none of the police officers noticed the outbreak of the fire but had to be informed by passers-by.  Dr Leung found those pleas puzzling and unthinkable. 

(2)  CP oversaw all police training and carrying out of duties by the police officers.  He has to be accountable and has the responsibility to explain the presence of the tear gas submunitions in the Premises to the Court.

(3)  DOJ’s submission dated 23 February 2023 contained false statements that “The Plaintiff was not requesting Further and Better Particulars Relevant to the Issues Pleaded in the Defendant’s Defence” and “the Defendant submits that the Plaintiff is plainly not requesting any further and better particulars relevant to the issues pleaded by the Defendant in his Defence”.  It was necessary for CP to explain himself for the alleged crime of perjury.

24.  With respect, CP was not present at the scene and would not be able to tell who made the destructive shot.  He had delegated the responsibility to the police officers on the ground as there were many protests and unlawful assemblies in multiple locations on 18 November 2019.  His liability, rather, was vicarious.  He had to rely on reports of his subordinates as to what happened to discharge his duty as CP.  

25.  There was an Inspector Yeung “in charge” who commanded his teammates to fire 2 shots of tear gas submunitions at the material time and at the material location.  The witness statement of Inspector Yeung has been filed already.  CP has the liberty to decide which witness to call.  Dr Leung’s view on the inadequacy of Inspector Yeung’s evidence at this stage is irrelevant in persuading the Court to compel CP to be a witness. 

26.  Dr Leung may not accept CP's position but that position has to be tested at the trial.  Whilst I do not think that Dr Leung has any intention to humiliate CP, calling CP who was not an eye witness would add nothing to help in resolving the issues at the trial but would only cause unnecessary costs and time.

27.  More importantly, Dr Leung has already made the same points in §16 of his submission in support of his application for further and better particulars (“FBP Application”) that he would not accept CP’s pleaded “statement” in the Defence that CP had no knowledge as to how the tear gas submunitions broke through the windows of the Premises.  Dr Leung wished CP to give further and better particulars as to why after 3 years of investigation, the police still had no knowledge; and there were accusations of perjury.  As Dr Leung’s FBP Application was dismissed by this Court and his appeal to the Court of Appeal is still ongoing, it is an abuse of process for Dr Leung to re-run his arguments in the present appeal.

28.  I find no merits in the CP ground.

Name of constable ground (item (7))

29.  There is no dispute of the tear gas submunitions landing in the Premises.  The Plaintiff seeks to hold CP liable for the misfiring by the police.  The gist of the defence has been set out in paragraph 3 above.  CP has already (through Mr William Yeung) disclosed the names of the police officers who “fired” 2 tear gas submunitions at the relevant time and the name of the highest rank of officer “in charge” at the scene.

30.  Dr Leung points out that none of the 3 defence witnesses identified himself as the person who fired the shot.  He therefore wished to compel CP to disclose the name of the police officer who fired the destructive shot to that Dr Leung could cross-examine him.  He is not seeking a subpoena at this stage.

31.  Dr Leung is seeking discovery/interrogatory, and not subpoena.  Given that CP did not admit that the tear gas submunitions was “misfired” by the police into the Premises, asking him to disclose the name of the constable who “misfired” the tear gas submunitions was effectively asking him to make an admission contrary to his pleaded case.  It was impossible for CP to identify such an unknown police officer and Item (7) simply lacked reasonable foundation.  This ground has no merits.

Constable Tsang issue

32.  Constable Tsang applied for a search warrant to retrieve the 2 emptied tear gas submunition shells from the Premises on 13 January 2020, as arson has been committed or reasonably suspected to have been committed.  Ms Chao confirms that there is no dispute as to admissibility of such evidence in this respect.  It appears that the search warrant now in the bundle dated 13 January 2020 was produced by CP.

33.  The reason why Dr Leung wants to have Constable Tsang as a witness is to know what information the latter had in order to state on oath before a Magistrate and eventually obtain the warrant.  Dr Leung would like to question him as to why he thought the tear gas submunitions were related to arson, whether he suspected the police who misfired the shot was the cause of the arson, the police’s conclusion on the investigation and its factual support and whether the police officer who misfired the shots were charged with the offence of arson. 

34.  Constable Tsang was not present during the operation on 18 November 2019.  The information that Dr Leung seeks from him as per paragraph 33 is in the nature of opinion evidence, as Constable Tsang was not the investigating officer.  The evidence sought is unlikely to assist the Court in ascertaining the identity of the person who had misfired the tear gas submunitions into the Premises or any issue related to liability or quantum.

35.  Dr Leung has in §§60-61(b) of his FBP Application submissions already made the same request for Constable Tsang to give FBP by acting as a witness and furnish a witness statement and a report to lay out the reasons as to why he classified the fire outbreak incident as “arson”.  The purported requests did not arise from the Defence.  The FBP Application was dismissed and Dr Leung’s appeal to the Court of Appeal is pending.  It is an abuse of process for Dr Leung to re-run his arguments in the present appeal.

36.  For the reasons given in this section, Master Ho’s order on this issue was correct.

Costs ground

37.  Dr Leung had asked for costs of the Summons to be in the cause but the learned Master ordered Dr Leung to bear 50% of the costs of the summons, and full costs of the hearing. 

38.  Dr Leung submits that CP had not agreed to the admissibility of the evidence of 2 civilians as the Plaintiff’s witnesses until the hearing before Master Ho on 6 June 2024; so Dr Leung should get costs.  Master Ho made the orders regarding witnesses as he did prematurely.  DOJ’s costs statement before the Master was for $101,091.  So 50% would have been about $50,000.

39.  I am unable to agree.  Master Ho has in fact taken into account the fact that Dr Leung was successful in part.  The bulk of the hearing before him dealt with issues as to subpoenas.  From the transcript of the hearing, Master Ho has explained that he ordered 50% because the application in respect of some of the FSD officers did not concern DOJ.  He taxed off $21,091 and ordered the amount of $90,000.

40.  There was no error of law shown in terms of who should bear costs and the apportionment. The rest was an exercise of discretion of which this Court sees no reason to disturb.

41.  In terms of quantum, the costs statement handed up by DOJ to Master Ho sought costs of $101,091.  By taxing off $21,091, Master Ho has effectively disallowed all costs for manual work (Part B), communication (Part C) and part of the work for the hearing (Part D1 and D2) and a small part of the hearing costs.  The assessed costs in substance reflected only the bulk of the costs of the hearing. There cannot be any complaint that Master Ho has wrongly exercised his discretion on quantum.

42.  The costs ground fails.

Master’s conduct ground

43.  It is alleged that Master Ho said that there was no evidence to indicate that CP has committed the crime of perjury in the light of irrefutable evidence that CP had made false statements in writing, ie the written submission of counsel lodged and served on 23 February 2023.  In so doing, Master Ho allegedly ignored this Court’s Decision handed down on 18 September 2023 in which this Court “acknowledged” this serious perjury issue which could be dealt with at the trial.  Master Ho should have referred this matter of perjury to the police for investigation.

44.  There is no substance in this ground of appeal.  The crime of perjury is committed by a person who makes a statement under oath as a witness in the proceedings which he knows to be false or does not believe to the true: section 31 of the Crimes Ordinance, Cap 200.  Insofar as any alleged perjury is about the truth of the defence, that must be a matter of trial, as stated in the Decision dated 19 September 2023, §3-4, when this Court dealt with Dr Leung’s FBP Application.  Insofar as, it was Ms Chao’s submission dated 23 February 2023 which Dr Leung claims to be perjury, that document was not made under oath, not by CP and not by CP as a witness.  In fact this allegation of CP having made a false statement in a submission has been dealt with by the decision dated 20 March 2024, §§16-17.  In no way had this Court “acknowledged” that CP had committed perjury or that there was an issue about his perjury in the submission.  Based on the evidence before him, there was nothing wrong in Master Ho’s comment that there was no evidence to indicate that CP had committed the crime of perjury.  The Master’s conduct ground fails.

Conclusion

45.  There is no merit in any ground of appeal.  The appeal is thus dismissed.

46.  Costs should follow the event such that Dr Leung should pay costs of this appeal to CP. This appeal is a re-run of the arguments before the Master and the costs claimed by DOJ fairly reflected this.  The costs statement was not lodged together with the written submission of DOJ and so I reduce the costs to reflect the non-compliance with PD14.3, §8. On a nisi basis, I order Dr Leung to pay costs of $38,000 to the Defendant for this appeal.

47.  I thank Ms Chao for her assistance.