LAM TSZ YEUNG, a minor suing by his father and next friend, LAM YAU PING v. THE INCORPORATED MANAGEMENT COMMITTEE OF ST. JOSEPH'S COLLEGE

DCMP 2739/2025

[2026] HKDC 518

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 2739 OF 2025

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DECISION

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1.  This case concerns an alleged assault (“the Incident”) by one student, Gao Anjie (“GAJ”), against another, the plaintiff, that took place at around 6 pm on 18 January 2022 at the basketball court of St. Joseph College (“the School”). It was alleged that a teacher of the School, Mr. Poon Kam Fai (“Mr. Poon”), was on duty at the time of the Incident.

2.  By way of the Originating Summons dated 20 May 2025, the plaintiff (a minor suing by his father and next friend, Lam Yau Ping (“Mr. Lam”) seeks pre-action discovery of 3 documents in relation to the Incident:

i)  All CCTV recordings capturing the basketball court of the School on 18 November 2022 between 6:00 pm and 7:00 pm; and

ii)  The interview records of:

(a) GAJ dated 30 November 2022; and

(b) Mr. Poon dated 21 December 2022.

Background

3.  At the relevant time, the plaintiff and GAJ were teammates in the School’s basketball team.

4.  According to the plaintiff (the Affirmation of Lam Yau Ping, Hearing Bundle A p. 9-18):

i)  According to the plaintiff’s recollection, sometime after 6 pm on 18 November 2022, he was engaged in an argument with GAJ “with verbal confrontations and physical contacts”. At one point, Mr. Poon came over and told the plaintiff and GAJ that: “你地咁鍾意欖來欖去，不如過嚟打欖球” before leaving them. The confrontation continued which ended in an assault by GAJ on the plaintiff (“punched in the face, pushed to the ground vigorously with his neck being pressed”) causing various physical and psychological injuries (paragraphs 5-7 of the Affirmation of Lam Yau Ping, Hearing Bundle A p.9-10)

ii)  For the purpose of investigating an intended claim against GAJ, Mr. Poon and the defendant, the plaintiff’s solicitors, Szwina Pang, Edward Li & Company Solicitors (“SPEL”), on 28 July 2023, requested discovery of various documents from the defendant according to the Pre-Action Protocol of PD 18.1. (paragraphs 12 of the Affirmation of Lam Yau Ping, Hearing Bundle A p.12).

iii)  There was a series of correspondence between SPEL and the defendant’s solicitors, Deacons (“Deacons”). The defendant refused to comply entirely with the requests (paragraphs 13-14 of the Affirmation of Lam Yau Ping, Hearing Bundle A p. 12).

iv)  With regard to the 3 classes of documents which are the subject matter of this pre-action discovery, the defendant has imposed various conditions including that such documents can only be inspected at its solicitor’s office by the plaintiff’s solicitors only (and not by Mr. Lam nor any Third Party) which the plaintiff deemed unreasonable and, indeed, would consist of a breach of the solicitor’s fiduciary duty to the plaintiff (paragraphs 15-16 of the Affirmation of Lam Yau Ping, Hearing Bundle A p.12-13).

v)  The plaintiff offered to give various “non-disclosure” undertakings but the defendant has still refused to comply, thus such requests have been on-going for some 22 months. The plaintiff therefore took out the current proceedings (paragraphs 16-19 of the Affirmation of Lam Yau Ping, Hearing Bundle A p.13-14).

5.  As set out in the pre-action letter dated 6 March 2024 from SPEL, the allegations against Mr. Poon, and against the defendant being vicariously liable, can be summarised as failure to take proper steps (e.g. proper look out, care, action) to stop the assault etc. Further allegations against the defendant alone can be summarised as failure to take proper care / supervision for students (e.g. engaging competent / sufficient / properly trained staff) etc. (Hearing Bundle B, p. 33)

6.  The defendant denies liability.

7.  As set out in the letter from Deacons dated 3 April 2024 (Hearing Bundle B, p. 37-39). The defendant raised various factual disputes, which can be summarized as follows:

i)  Mr. Poon had no prior knowledge of any quarrel or dispute between the plaintiff and GAJ, and he denied that he had seen any confrontations, argument and/or physical contacts between them;

ii)  The quarrel between the plaintiff and GAJ escalated to a physical confrontation in 16 seconds and “it would be impossible to prevent the incident from happening unless a teacher was assigned to monitor them at close proximity”.

Legal principles

8.  Section 47A of the District Court Ordinance (Cap.336) provides:

“Power of the Court to order disclosure, etc. of documents before commencement of proceedings

  (1) A person who appears to the Court to be likely to be a party to subsequent proceedings may apply to the Court for an order for discovery of documents against a person who is likely to be a party to the proceedings and who has in his possession, custody or power documents directly relevant to an issue arising out of the claim.

  …

  (3) The Court may order the person, if it appears to it that the person is likely to have or to have had in his possession, custody or power any directly relevant documents-

  (a) to disclose whether those documents are in his possession, custody or power; and

  (b) to produce the documents in his possession, custody or power to the applicant or, on the conditions specified in the order-

  (i) to the applicant’s legal advisers;

  (ii) to the applicant’s legal advisers and a medical or other professional adviser of the applicant; or

  (iii) if the applicant has no legal adviser, to a medical or other professional adviser of the applicant.

    (4)For the purposes of subsections (1) and (3), a document is only to be regarded as directly relevant to an issue arising out of a claim in the anticipated proceedings if—

  (a)the document would be likely to be relied on in evidence by any party in the proceedings; or

  (b)the document supports or adversely affects any party’s case.”

9.  Further, Order 24, rule 8(2) of the Rules of the District Court (Cap 336H) provides:

“No order for the disclosure of documents shall be made under section 47A or 47B of the Ordinance, unless the Court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.”

10.  In Zhang Shouen and Anor v Standard Chartered Bank (Hong Kong) Limited, HCMP 682 of 2015 (15 October 2015), G Lam J (as he then was) explained that the requirements for exercising the court’s power to order pre-action discovery may be stated as follows:

i)  The applicant appears to be likely to be a party to subsequent proceedings in the court in which a claim is likely to be made. In order to satisfy the requirement that a claim is likely to be made, the applicant must show a claim “may” or “may well” be made if discovery is granted.

ii)  The respondent appears likely to be a party to such proceedings.

iii)  The respondent appears likely to have or to have had in his possession, custody or power the document requested.

iv)  The requested document is “directly relevant” to an issue arising or likely to arise out of the claim. “Direct relevance” is shown only if:

a.  the document would be likely to be relied on in evidence by any party in the proceedings; or

b.  the document supports or adversely affects any party’s case.

v)  The applicant must satisfy the court that the order for pre-action discovery is necessary either for disposing fairly of the cause or matter or for saving costs.

The defendant’s case

11.  The defendant does not dispute the above requirements i) and ii). Further, it also admits that it has the 3 classes of documents requested in its possession so it is not disputing requirement iii).

Directly relevant

12.  Before I deal with the main points of objection raised by the defendant, during the hearing, Mr. Leon Ho, counsel for the defendant (“Mr. Ho”), appeared to be raising an objection on whether the documents are “directly relevant”, i.e. requirement iv).

13.  Mr. Ho referred to the pre-action letter and argued that “not all” of the allegations raised are related to the documents sought e.g. allegations of failure to prevent the assault / injury, and failure of the defendant to provide staff training etc.

14.  I cannot understand this line of argument.

15.  The plaintiff only needs to show that the requested document is “directly relevant” to an issue arising or likely to arise out of that claim, he does not need to show that the requested documents are “directly relevant” to all the issues raised.

16.  The relevant issues here are the factual disputes as stated in paragraph 7 above. The requested documents may likely show the time taken for the escalation of the confrontation (especially with the CCTV footage) and whether this might be “impossible to prevent” as alleged by the defendant. Further, the documents may support (or otherwise) the defendant’s claim that Mr. Poon has no prior knowledge of any quarrels or dispute.

17.  Thus, these documents are clearly “directly relevant” to the above issues and “would be likely to be relied on in evidence by any party in the proceedings” which also “supports or adversely affects the party’s case”. This clearly satisfies requirement iv) in the Zhang Shouen case.

Admissibility of Mr. Lam’s evidence

18.  Mr. Lam has made two affirmations in support of the Originating Summons. Mr. Ho argued that Mr. Lam, as the father of the plaintiff and not present at the Incident, has no personal knowledge on the key allegations of the Incident (e.g. paragraph 4(i) above). Although a police statement by the plaintiff was exhibited (by the defendant and not by the plaintiff) (Hearing Bundle B, p 68-69), the plaintiff did not make any affirmation to confirm the content.

19.  Mr. Ho referred to Order 41 rule 5(1) which provides that:

“Subject to… (various orders not applicable here), an affidavit may contain only facts as the deponent is able of his own knowledge to prove.”

20.  He referred to the case of AXHT Company Limited v王一誠 [2026] HKCFI 34. In that case, the defendant’s solicitors made affirmations which exhibited the unconfirmed affirmation of the defendant. And the solicitors, instead of affirming that the content was true, only affirmed that the defendant confirmed to them that the content were true. The judge ruled that this was hearsay evidence and “given that the present proceedings were not interlocutory but final”, it was inadmissible under Order 41 rule 5(1).

21.  Here lies the problem with Mr. Ho’s argument.

22.  The current application, although commenced by way of Originating Summons, is a pre-action discovery action more in form of an interlocutory application. The AXHT case, on the other hand, is a final judgment.

23.  Indeed, Order 41 rule 5(2) stated:

“An affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information or belief with the sources and grounds thereof.”

24.  Mr. Lam did exactly that in both his affirmations:

“The matters to which I depose herein are within my personal knowledge, and are true to the best of my information and belief. Where I have relied on information supplied by others, I believe that information to be true and the source of my information is stated.” (paragraph 2 of Affirmation of Lam Yau Ping, Hearing Bundle A p. 9 and paragraph 2 of 2^nd Affirmation of Lam Yau Ping, Hearing Bundle A p.26)

25.  Further, under paragraph 5 of Mr. Lam’s first affirmation which related to how the Incident happened, he stated the source of such information:

“According to Tsz Yeung’s recollection…”

26.  Miss Kay Seto, counsel for the plaintiff (“Miss Seto”), also referred the court to Section 47 of the Evidence Ordinance Cap. 8, which provides:

“Admissibility of hearsay evidence

  (1) In civil proceedings evidence shall not be excluded on the ground that it is hearsay unless—

  (a) a party against whom the evidence is to be adduced objects to the admission of the evidence; and

  (b) the court is satisfied, having regard to the circumstances of the case, that the exclusion of the evidence is not prejudicial to the interests of justice.”

27.  Miss Seto argued that Mr. Ho has not raised any arguments that the defendant’s position would otherwise be prejudiced in the interest of justice.

28.  I agree.

29.  In response, Mr. Ho referred to Section 46 which is the interpretation section. Here, civil proceedings is defined as “civil proceedings, before any court, in relation to which strict rules of evidence apply…” and hearsay as “means a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated”.

30.  Mr. Ho argued that if one combined these two definitions, it would mean “civil proceedings when oral evidence is tendered”, i.e. civil trials. Thus, Section 47 would only apply to civil trials and not interlocutory proceedings, and so the decision of the AXHT case still applies.

31.  In my view, this is a very badly thought-through argument.

32.  Mr. Ho made a complete misinterpretation of “hearsay” and “civil proceedings” under Section 46.

33.  Hearsay is defined as a statement made otherwise than by a person while giving oral evidence in the proceedings etc. In other words, hearsay evidence means all other evidence except those given as oral evidence at the proceedings.

34.  Further, “civil proceedings…in relation to which strict rules of evidence apply” does not mean civil trials only, unless Mr. Ho is suggesting that strict rules of evidence are only applicable at civil trials but not at other civil proceedings. Indeed, if one extends this argument, then strict rules of evidence should not be applicable in this “non-trial” application, and one might question why Mr. Ho was arguing about the admissibility of evidence here?

35.  In effect, Mr. Ho was interpreting Section 46 to mean “hearsay evidence defined in this section is restricted to evidence given in civil trials”. Mr. Ho thus argued that Section 47(1) only refers to admissibility of hearsay evidence in civil trials, and therefore in all other civil proceedings (including interlocutory proceedings), hearsay evidence should be excluded.

36.  This clearly does not make any sense: it would mean that evidence adduced at interlocutory proceedings must require a stricter requirement than evidence adduced at civil trials.

37.  Further, if hearsay evidence is not admissible at any interlocutory proceedings, any “statement of information and belief” cannot be adduced in affidavit without calling “the source” to adduce his own evidence. This would completely contradict Order 41 rule 5(2). Mr. Ho did not provide any explanation to this obvious contradiction.

38.  Indeed, the wordings of section 47(1) started with “In civil proceedings…”. If there was such a legislative intention as suggested by Mr. Ho, it would simply be drafted to read: “In civil trials…”.

39.  I would therefore find that Mr. Lam’s evidence is admissible.

The necessity of the pre-action discovery

40.  This is the defendant’s main argument.

41.  In short, Mr. Ho disputes whether the plaintiff “satisfies the court that the order for pre-action discovery is necessary either for disposing fairly of the cause or matter or for saving costs”, i.e. requirement (v) in the Zhang Shouen case, which is, in effect, a quote of Order 24 rule 8(2).

42.  Regarding this “test of necessity”, G Lam J stated in the Zhang Shouen case:

“28. Pre-action discovery is thus decidedly not intended to be simply general discovery or specific discovery taking place before commencement of an action, It is not intended to extend to “background” documents or documents simply leading to a possible “train of inquiry”, but is confined to documents that are “directly relevant” within the meaning of s.41.”

“33. In the context of pre-action discovery, if the documents can be shown to be “directly relevant” in the sense defined in s. 41, they will also be necessarily be relevant in the Peruvian Guano sense, and can therefore be expected to be disclosed in the ordinary course of the action after the proceedings have been commenced. It is in my view therefore incumbent upon an applicant for an order for pre-action discovery to show, not only that discovery of the document in question is necessary, but that discovery of the document before commencement of the action is necessary. The precise justification will vary from case to case, but an obvious reason would be where a key document is needed by the plaintiff before he can properly plead a potentially good claim. As was recognized in the Final Report of the Chief Justice’s Working Party on Civil Justice Reform (2004) at paragraph 487, the pre-action discovery regime is intended to strike

“a reasonable balance between the need to protect against harassment and fishing applications on the one hand and the need to enable a potentially meritorious plaintiff to bring a claim which could not effectively otherwise be brought”.

43.  Whilst these are clearly good legal principles, Mr. Ho went on to quote various Singaporean and Malaysian precedents in arguing that the “test of necessity” is for the purpose of whether the prospective plaintiff has “a good cause of action or not” (originating from the ruling in the UK case of Dunning v Board of Governors of the United Liverpool Hospitals [1973] 1 WLR 586).

44.  Mr. Ho argued that precedents in Hong Kong, Singapore and Malaysia all stemmed from this UK ruling and the respective orders from different jurisdictions have “substantially the same wordings”. He noted that the ruling was further developed in the Singaporean and Malaysian courts into legal principles that stated, in summary:

“Pre-action action discovery is for prospective plaintiff to come to a determination of its cause(s) of action and not an opportunity for the prospective plaintiff to come to an early assessment of the merits or strength of its case. Therefore a “viable” or “good” cause of action means no more than a cause of action that is made out in law.”

“Pre-action discovery is unnecessary where an individual is in the position to commence proceedings…by virtue of the disclosed documents the potential plaintiff will be able to decide if he has a cause of action against the defendant.”

(paragraph 22 of the Skeleton Argument of the defendant)

45.  Mr. Ho’s argument, in short, is that:

a)  the plaintiff is already capable of knowing that he has a cause of action against the defendant based on the plaintiff’s own evidence: the plaintiff has first-hand experience of the Incident and thus can formulate the intended claim;

b)  The documents requested are only for an early assessment of the strength of his case;

c)  However, pre-action discovery is intended only to enable the prospective plaintiff to assert the case, not to prove the case;

d)  Therefore, the requested documents are not necessary at the pre-action stage.

46.  Mr. Ho also disagrees with the commentary at paragraph P4/S47A/1 of the Hong Kong Civil Procedure 2026, Vol. 2, which stated that:

“In order to promote greater transparency between the parties at an earlier stage with a view to facilitate settlement, this section widens the jurisdiction of the District Court to order disclosure before commencement of proceedings to cover cases other than those relating to personal injury and fatal accident claims…”

47.  Mr. Ho argues that this commentary was without authority. Instead, paragraph 488 of the Final Report of the Civil Justice Reform stated:

“Since pre-action protocols have not ben recommended for general adoption in Hong Kong, it is not proposed to specify as a discretionary factor, the desirability of pre-action disclosure in aid of early settlement.”

48.  Mr. Ho also made the distinction between PD18.1 and Section 47(A). Pre-action Protocol of PD18.1 requires the parties to provide mutual discovery of documents on liability and quantum prior to commencement of proceedings etc. (paragraph 19 of PD18.1). But this is no more than a guidance of matters of practice and has no statutory force. It cannot alter the general law. He argued that non-compliance of such without good reasons would only lead to adverse costs consequences (paragraph 9 of PD18.1). Thus, pre-action discovery under Section 47(A) and PD18.1 operate under completely separate sets of legal principles.

49.  Mr. Ho further submitted that the purpose of pre-action discovery is different from general discovery. He suggested that pre-action discovery is only available to prospective plaintiff and thus would be unfair to the prospective defendant when the prospective plaintiff was allowed to get a “head-start” on crucial documents, in effect giving the prospective plaintiff an unfair advantage in any early settlement. So, although early settlement might be achieved as a by-product, it could not be perceived as the primary purpose for pre-action discovery.

Consideration

Pre-action discovery not only available for the potential plaintiff

50.  First of all, as pointed out by Miss Seto, Section 47A of DCO stated, under subparagraph (1):

“A person who appears to the Court to be likely a party to the subsequent proceedings may apply…”

51.  As such, Mr. Ho’s contention that pre-action discovery is only restricted to prospective plaintiffs is clearly wrong: such application is available to both prospective plaintiffs and defendants.

Application of Singaporean and Malaysian precedents in Hong Kong

52.  Secondly, I seriously doubt that the legal principles in Singaporean and Malaysian courts are applicable in Hong Kong.

53.  Indeed, if we return to the Zhang Shouen case (under paragraph 34), G Lam J has already made a warning against referring to English authorities due to different wordings:

“It should be noted that in determining whether there is power to order pre-action discovery as well as exercising the power under s. 41 of the Ordinance, modern English Authorities are likely to be of limited direct assistance and care must be taken in relying on them because of the different regimes adopted in the two jurisdictions…the (English) Civil procedural Rules provides there is power to order…only where…such disclosure is “desirable”…This has to be contrasted with RHC rule 8(2) which uses the word “necessary”…”

54.  Referring to the Singaporean Rules of Court (Cap 322, R5, 2006 Rev Ed.), Order 24(6) stated, under subparagraph (3):

“An originating summons…shall be supported by an affidavit which must…specify or describe the documents…that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings, or both, and that the person…is likely to have…them in his possession, custody or power.”

And under subparagraph (5)

“An order for discovery for documents before the commencement of proceedings or for discovery of documents by a person who is not a party to the proceedings may be made by the court for the purpose of or with the view to identifying possible parties to any proceedings in such circumstances where the court thinks it just to make such an order and on such terms as its thanks just.”

55.  I do not agree with Mr. Ho that the wordings used in the Singaporean Order were “substantially the same” as Order 24, rule 8(2) (see paragraph 9 above).

56.  In fact, the wordings were substantially different, one obvious example is the use of the wordings: “where the court thinks it just” (Singapore); and “the court is of the opinion that the order is necessary for disposing fairly of the cause or matter or for saving costs” (Hong Kong).

57.  Indeed, for the Hong Kong “test of necessity”, it is important to refer again to the Zhang Shouen case:

“The precise justification will vary from case to case, but an obvious reason would be where a key document is needed by the plaintiff before he can properly plead a potentially good claim.”

58.  Thus, needing a document to “properly plead a potentially good claim” is but one, albeit “obvious”, example of “justification”. Thus, the Hong Kong position is clearly at variance with the Singaporean and Malaysia precedents, which essentially ruled that this would the only justification: “Pre-action discovery is unnecessary where an individual is in the position to commence proceedings…:

59.  It is also of note that in the Hong Kong “test of necessity”, there is an extra stand-alone consideration of “saving costs”. I will refer further to this in the next section.

60.  In conclusion, I cannot see how the Singaporean and Malaysia precedents would offer much assistance here. Much like a Darwinian Evolution, our laws may all share the same origin from one UK ruling but different regimes have evolved in different jurisdictions having adapted to prevailing local circumstances.

All the circumstances of this case

61.  To be fair, Mr. Ho also refers to some Hong Kong precedents which also showed that the purpose of a pre-action discovery is for “assistance in determining the nature and terms of a claim” and would not be allowed if “the lack of them would not hinder the plaintiff in formulating her case and bringing an action” (VTB DC LLC & Anor v Top Fuel Corporation Limited & Anor HCMP 1543/2013, unreported, 16 April 2014 and Chan Hoi Shuet Susan v The Chinese University of Hong Kong [2018] HKDC 797 etc.).

62.  However, section 47A does not operate in a vacuum without the court needing to consider the circumstances of each particular case. The circumstances of note here is that this is a potential personal injury claim and the Hong Kong precedents referred to by Mr. Ho are not.

63.  As G Lam J stated in the Zhang Shouen case (under paragraph 22):

“…The fifth requirement means that the court will not exercise its power to make an order unless discovery is necessary either for fairly disposing of the cause or matter or for saving costs. Subject to this, however, the discretion seems to me to be an unfettered one to be exercised in all the circumstances of the case.”

64.  Mr. Ho quoted paragraph 488 of the Final Report of the Civil Justice Reform which stated that pre-action protocol is not adopted generally for all civil proceedings (see paragraph 47 above).

65.  However, Mr. Ho failed to note that pre-action protocol was indeed adopted for PI proceedings. As such, the Working Party on CJR must have considered that for PI proceedings, “the desirability of pre-action disclosure in aid of early settlement” should be regarded as a “discretionary factor”.

66.  Thus, it is self-evident that the peculiar nature of a PI action is such that early settlement is desirable and thus encouraged by the court.

67.  I shall now return to the extra stand-alone consideration of “saving costs” under Order 24, rule 8(2). This clear emphasis must be based on prevailing Hong Kong circumstances and distinguishes our rules from those from Singapore or Malaysia. It allows discretion of the court to order pre-action if it could be shown that the order was necessary for saving costs alone.

68.  I am of the view that the relevant test here is whether the requested documents are necessary “for saving costs” under the circumstances of a potential PI claim.

69.  The requested documents are directly relevant to the factual disputes as stated in paragraph 7 above thus may resolve the issue of (1) the foreseeability of the Incident (2) whether there was any breach of duty of care by Mr. Poon, and (3) whether any alleged breach of duty of care of Mr. Poon and / or the defendant would have caused the Incident.

70.  For instance, the plaintiff may not likely have a memory that spans a second-by-second timing of the escalation of the Incident. Thus, the CCTV footage may well be the only piece of objective evidence to show such timing and may address the issue of causation: was it possible for Mr. Poon to prevent the Incident? If this crucial question can be addressed, the plaintiff may not initiate action against Mr. Poon and the defendant altogether.

71.  Even if such requested documents may not settle all disputes decisively, the court should also consider that this is a PI case so should aim to promote greater transparency at an earlier stage thus enable early investigation by the parties into merit and strength of their case with a view to facilitate settlement, and thus, “saving costs”.

72.  This is consistent with the aim of the pre-action protocol of PD 18.1.

73.  The defendant argues that PD18.1 only provides that non-compliance with voluntary mutual disclosure without good reasons may lead to adverse costs consequences etc.

74.  That may well be the consequence if a party is non-compliant without the other party taking further action regarding such.

75.  However, the plaintiff here is making a pre-action discovery application and the court needs to consider all the circumstances of the case, including the fact that this is a potential PI claim.

76.  Whilst it is arguable that the requirement of PD18.1 should not be used to justify an application for pre-action discovery of every class of information and documents suggested for voluntary disclosure under the pre-action protocol, the court must not ignore the aim of PD18.1 when considering whether the documents requested satisfied the “test of necessity” for “saving costs”.

77.  Indeed, in exercising its discretion, the court should aim for: “a reasonable balance between the need to protect against harassment and fishing applications on the one hand and the need to enable a potentially meritorious plaintiff to bring a claim which could not effectively otherwise be brought”.

78.  These are the two extremes of the circumstances when pre-action discovery may be raised.

79.  In the context of a PI or potential PI proceedings, the court should consider that costs might be saved by promoting the parties to investigate into the respective merit of their case at an early stage, so long that any pre-action discovery should not descend into harassment or a fishing exercise, which, of course, only serves to increase, rather than “saving” costs.

80.  This application clearly is not harassment or a fishing exercise.

81.  Thus, when all the circumstances of this case are considered in whether pre-action discovery is necessary “for saving costs”, the answer is clearly “yes”. In this potential PI action, such an application will be necessary for preventing an unnecessary and unmeritorious claim and / or for promoting an early settlement.

Other points

Prior “release” of documents

82.  The defendant also argued that Mr. Lam was allowed to view the CCTV recordings three times and has taken “a copy of at least part of” the recordings “without prior knowledge and approval” of the defendant (paragraph 36(2) of the Skeleton Arguments for the defendant).

83.  I cannot see why that would prevent the court from ordering a discovery of the full CCTV recordings. Indeed, it is the evidence of Mr. Lam that he “did not capture the entire verbal confrontations and physical contacts” between the plaintiff and GAJ (paragraph 5 of the 2^nd Affirmation of Lam Yau Ping, Hearing Bundle A p.27).

Confidentiality

84.  The defendant has raised criticism of Mr. Lam’s previous conduct regarding the publicizing of the case and materials which should have been kept confidential. Given the correspondence between Deacons and SPEL, one may suspect that this is the real reason why the defendant is reluctant to agree to this application.

85.  Whilst the court understands the defendant’s concern, this does not just the court refusing the application.

86.  I am putting down a marker that Miss Keto has reassured the court that Mr. Lam and the plaintiff has received proper legal advice, and that the current application was for the purpose for seeking legal advice only.

87.  I cannot see why such concern cannot be addressed by the parties agreeing on reasonable terms of an undertaking of confidentiality given by Mr. Lam and the plaintiff. No doubt Miss Seto will properly advise Mr. Lam and the plaintiff of the consequences of breaching an undertaking.

Order

88.  The court will therefore make the following order:

a)  The defendant shall, within 14 days from the date of the order to be made, disclose by way of affidavit whether the following documents (“Documents”) are in its possession, custody or power:

i)  All CCTV recordings capturing the basketball court of St. Joseph’s College on 18 November 2022 between 6:00 pm and 7:00 pm; and

ii)  The interview records of (a) Gao Anjie dated 30 November 2022 and (b) Poon Kam Fai dated 21 December 2022.

b)  The defendant shall produce true copies of the Documents in its possession, custody or power to the plaintiff and/or his legal advisers within 14 days from the date of the order to be made.

c)  Costs of the Originating Summons be paid by the defendant to the plaintiff, to be taxed on a common fund basis if not agreed, with certificate for counsel.

d)  The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.