LIU CHEUNG KEUNG v. NG CHI KEUNG

HCPI 272/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 272 OF 2008

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R U L I N G

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Background

1. Mr. Liu sustained injuries to his eye while he was working in a construction site for his employer on 25 April 2005.  He issued a writ on 12 April 2008 against the employer for damages.

2. Mr. Liu however has not been able to serve the writ and the accompanying documents on the employer on the two addresses he has.

3. As a result of the accident, the Commissioner prosecuted the employer by issuing two summonses in December 2006 (“the said summonses”) in connection with the accident, and accused the employer of having failed to keep a valid policy of insurance in respect of the employment of an employee, and to make a report to the Commissioner.  The employer was convicted of both summonses in September 2007.

4. Mr. Liu’s solicitors requested the Commissioner for copies of the said summonses and the connected documents.  The Commissioner however crossed out the address and the identity card number of the employer from the copies of the summons he sent to the solicitors.  Notwithstanding the request by the solicitors for unedited copies, the Commissioner refused to accede to the request.

5. Hence, the present application under Order 24 rule 7A of the Rules of High Court against the Commissioner, a non-party to this action, to disclose the copies of documents containing the employer’s last known address relating to the said prosecution.

Issue

6. According to the correspondence exhibited to the affirmation in support of the application, the reason of the Commissioner’s refusal was on the ground that the employer’s address which Commissioner had possession was as a result of the criminal prosecution, and such information could not be released under the Personal Date (Privacy) Ordinance (Cap. 486)

7. However, the legal counsel acting for the Commissioner does not now seem to be vigorously pursuing this argument.  She contends that the unedited documents showing the address are neither “relevant to an issue arising out” of the claim (section 42 (1) of High Court Ordinance) nor “relevant to an issue arising or likely to arise out of a claim” (Order 24 rule 7A(2)).  She adds that the address will not be for the purpose of proving or disproving any issues in the case.

Discussion

8. An application under Order 24 rule 7A confers a wide discretion in the court in granting discovery against a non-party.  Discovery will be ordered if, generally, the documents sought are within the principles laid down in the Peruvian Guano Case (1882) 11 QBD.  According to the statement in the Peruvian Guano, the document to be discovered includes document, which contains information that directly or indirectly enables a party to advance his own case or to damage the case of his adversary.

9. According to the established principle, therefore, the document does not have to be directly relevant, and it is wide enough to include any document, which may indirectly lead to a further chain of inquiry.

10. Applying this principle, I am unable to accept the legal counsel’s argument that the unedited documents are not relevant to the claim.  I find that the unedited documents will give information, broadly speaking, which will assist Mr. Liu to not just serve the writ, but would also enable him to lead to further inquiry for the purpose of advancing his case, for example, by obtaining discovery against the employer in order to prove his claim.

11. I note that the legal counsel does not seem to be vigorously arguing against discovery on the ground of the breach of the personal data principle under section 58 of Cap.486.  For completeness, however, I would simply say that that the disclosure is exempted from the provision of the data protection principle 3 by section 58(2) of the said Ordinance.  (For detailed analysis of the exemption, see Tse Lai Yin Lily & Ors v Incorporated Owner of Albert House & Ors. [1999] 1 HKC 386)

Order

12. I grant order in terms of the summons filed on 23 June 2008.  The costs order is nisi.