HCMP 722/2019
[2020] HKCFI 2975
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO 722 OF 2019
________________________
IN THE MATTER OF release of undertaking not to use documents for other proceedings under Order 24 Rule 14A of the Rules of High Court and under inherent jurisdiction
________________________
BETWEEN
WONG LEE YUK PING AGNES(黃李玉平)
Plaintiff
and
THE COMMISSIONER OF POLICE
1st Defendant
WAH SUN HONG LIMITED
2nd Defendant
(華新行塑膠原料有限公司)
________________
Before:
Mr Recorder Pow SC in Chambers
Date of Hearing:
28 September 2020
Date of Judgement:
8 December 2020
_________________
JUDGMENT
_________________
Introduction
1. On 17 May 2019, the Plaintiff filed an Originating Summons seeking for the following order:-
“the Plaintiff be released from her implied undertaking to the Court in respect of documents provided to the 1st Defendant (the “Police ”) by the 2nd Defendant in support of its criminal complaints against the Plaintiff which documents were supplied to the Police by or on behalf of the 2nd Defendant, in particular the documents specified in paragraph 10 of the Plaintiff’s Affidavit filed herein which are relevant to civil proceedings under HCA333 of 2016 and HCA874 of 2015” (the “OS ”).
The said documents “in particular” are 64 in total and had been identified in the Plaintiff’s Affidavit as “LYP 1-2, 24, 26, 28-30, 34-41, 45-46, 53-80, 163, 203-218 and 290-291” (the “Documents ”).
2. On 10 September 2020, the Plaintiff took out a Summons for, inter alia , leave to amend the OS to the effect that 15 additional documents, namely “LYP 286, 289, 292, 295 and 427-437” (the “Additional Documents ”) be included in the OS (the “Summons ”).
3. By a letter dated 10 March 2020, the Police (1st Defendant) indicated that it adopts a neutral position to the present application and asked to be excused from filing submissions for this hearing. The same position was confirmed by Ms Siu who appeared for the Police at the hearing.
4. As for the 2nd Defendant, its position is that the OS is an abuse of process and in any event a wrong procedure. The 2nd Defendant thus opposes the OS and hence the Summons on the same basis.
Background
5. From 2015 to 2016, the 2nd Defendant commenced several civil actions against the Plaintiff, amongst which are HCA 874/2015 and HCA 333/2016. They have eventually been consolidated with four other actions.
6. In HCA 874/2015, the 2nd Defendant claims against the Plaintiff for breach of duty owed in her capacity as director and employee of the 2nd Defendant, as well as a fiduciary or agent of the 2nd Defendant.
7. In HCA 333/2016, the 2nd Defendant claims against the Plaintiff also for breaches of duty owed in her capacity as director and employee of the 2nd Defendant. The 2nd Defendant’s case against the Plaintiff is that on various dates between 23 March and 8 April 2011, the Plaintiff caused sums totaling HK$19,139,209 to be transferred from the 2nd Defendant’s account to one Mr Deng Ping and such transactions were not supported by any, or any bona fide dealing between the 2nd Defendant and Mr Deng Ping.
8. The lists of documents of the 2nd Defendant in HCA 874/2015 and HCA 333/2016 were filed on 15 June 2017 and 9 January 2018 respectively (the “LODs ”).
9. In the meantime, the 2nd Defendant filed a number of criminal complaints against the Plaintiff and her son which eventually led to their arrest by the Police on 27 February 2018.
10. The Plaintiff was informed by the Police that there were in total 8 complaints filed against her. Such complaints were allegedly supported by documents supplied by the 2nd Defendant to the Police. Copies of the supporting documents (including the Documents and the Additional Documents) were given to the Plaintiff by the Police. The Plaintiff is still in possession of copies of the Documents and the Additional Documents.
11. The content of “Complaint 1” to the Police is in fact the same as the allegations made by the 2nd Defendant against the Plaintiff in HCA 333/2016 (the “Complaint ”).
12. Subsequently, the Plaintiff discovered that certain documents provided to the Plaintiff by the Police in relation to the Complaint had not been disclosed by the 2nd Defendant in HCA 333/2016 and HCA 874/2015.
13. On 25 October 2018, Messrs. W.L. Yuen & Co. (the “Plaintiff’s solicitors ”) wrote to the Police, enquiring whether the Police had any objection to the Plaintiff’s production of the documents in civil proceedings.
14. On 6 November 2018, the Police replied to the Plaintiff’s enquiry with a letter, stating:-
“Please be reminded the only reason for providing you the said documents was for criminal investigation and later possible court proceeding of this case. You are therefore advised to contact the data subject of the original documents namely the plaintiff directly for consent for production of the said documents during the civil proceedings.”
15. Consequently, on 4 February 2019, the Plaintiff’s solicitors issued a letter to the Board of Directors of the 2nd Defendant, stating:-
“It is also apparent that a large number of documents upon which you purported to rely in making your complaints to the police have not been the subject of proper discovery by the plaintiffs in those actions. For the purpose of enabling our client to rely on such relevant documents in the civil proceedings unless you expressly consent to our client disclosing the Documents in civil proceedings
16. On 25 February 2019, Messrs. Henry Wai & Co. (the “2nd Defendant’s solicitors ”) wrote back to the Plaintiff’s solicitors, stating that a number of questions needed to be answered by the Plaintiff before further consideration would be given to the Plaintiff’s request. These questions included: (i) whether the Police had imposed restrictions on the use of the Documents; (2) relevance to the civil actions; and (3) legal basis and authorities for the application for release of implied undertaking.
17. Without answering the questions posed by the 2nd Defendant, the Plaintiff took out the OS on 17 May 2019.
18. On 28 May 2019, the 2nd Defendant’s solicitors sent a letter to the Plaintiff’s solicitors, containing inter alia the following assertions:-
“1.1 Firstly, your client’s application under the OS is premised upon the existence of the Alleged Implied Undertaking in respect of the Criminal Complaints Documents.
1.2 … Neither our firm nor the Senior Counsel can discern any matter, circumstance, ground or principle giving rise to the Alleged Implied Undertaking
2.1 In our letter dated 25th February 2019 to you, we also inquired with you whether the police has imposed any condition or restriction on the use by your client of the documents provided by it to your client, whether at the time when the documents were provided by the police to your client or at any other time…
2.2 It now transpires that in fact the police has imposed condition or restriction on the use by your client of the Criminal Complaints Documents
2.3 Therefore, there is no question of the Alleged Implied Undertaking arising in relation to the use of the Criminal Complaints Documents. Instead, the hurdle face by your client was and still is the said Restriction imposed by the police.
…
3.1 Whilst our client may or may not consent to your client’s use of the Criminal Complaints Documents in the civil proceedings…then it is up to your client to seek specific discovery of the Criminal Complaints Documents
3.2 Your client cannot evade the requirements of seeking specific discovery by disguising her application as an application to be released from the Alleged Implied Undertaking, when the hurdle is not the Alleged Implied Undertaking but the said Restriction imposed by the police.” [emphasis added]
19. In the letter sent by the Plaintiff’s solicitors to the 2nd Defendant’s solicitors dated 31 May 2019, the Plaintiff’s solicitors indicated that they did not intend to enter into protracted discussion with the 2nd Defendant’s solicitors and it was their understanding that, the 2nd Defendant solicitors were not acting for the 2nd Defendant in respect of the criminal complaints.
20. By a letter dated 2 October 2019 marked “Without Prejudice Save as to Costs” (the “WP Letter ”), the 2nd Defendant first maintained that the Plaintiff’s application under the OS was misconceived. It suggested that the proper application to be made by the Plaintiff should be for specific discovery under the civil actions. However, on a without prejudice basis, they made inter alia the following proposals to the Plaintiff:
“…
Each of our respective clients, i.e. WSH and Mrs. Wong, will on or before 31st December 2019 file and serve a further list of documents (if applicable) in each of HCA 874/2015 and HCA 333/2016 to make discovery of further documents (if any) in the possession, custody or power of our client (or your client, as the case may be) which are relevant to the action in question and necessary either for disposing fairly the action or for saving costs.
The hearing of the Originating Summons to be held on 7th November 2019 at 9:30 a.m. before Deputy High Court Judge Dawes, S.C. be vacated and adjourned sine die with liberty to restore at any time after 31st December 2019.
Costs be reserved.”
21. In response to the 2nd Defendant’s proposal, the Plaintiff’s solicitors sent an open letter to the 2nd Defendant’s solicitor on 14 October 2019 (the “14 Oct Letter ”). In the letter, apart from denying that her application in the OS was misconceived, the Plaintiff stated inter alia that:
“…Yet further, our application for release of the implied undertaking to court is one which is wholly independent of the civil actions…Your proposal is unreservedly rejected.”
22. On 15 November 2019, the 2nd Defendant’s solicitors sent a letter to the Plaintiff’s solicitors. In the letter, the 2nd Defendant complained to the Plaintiff about the disclosure of the WP Letter to the Department of Justice and questioned the meaning of “wholly independent of the civil actions ” as stated in the 14 Oct Letter.
23. On 20 November 2019, the Plaintiff’s solicitors wrote back. However, the Plaintiff did not respond to the complaint nor answer the question posed by the 2nd Defendant in its letter dated 15 November 2019.
24. On 21 November 2019, the 2nd Defendant’s solicitors issued another letter to the Plaintiff’s solicitors, reiterating the question as to the meaning of “wholly independent of the civil actions ”. In particular, it was stated that:
“3. If you still fail and/or refuse to answer such a simple question by the Deadline, then your client’s position in relation to her application for release from the implied undertaking will be treated as being wholly independent from and hence having nothing to do with the discovery of the documents in question in HCA 333/2016 and HCA 874/2015, thereby superceding the statements made in the affidavit evidence of your client to such effect…”
25. Once again, in the letter from the Plaintiff’s solicitors to the 2nd Defendant’s solicitors dated 25 November 2019, the Plaintiff refused to give an answer to the question raised by the 2nd Defendant in its letter dated 15 November 2019 as the Plaintiff alleged that the issue had already been adequately addressed in their previous letters.
26. On 16 December 2019, the 2nd Defendant’s solicitors issued another letter to the Plaintiff’ solicitors (the “16 Dec Letter ”), stating that, inter alia :
“…If, as deposed to in Mrs. Wong’s Affidavits, her application is for the aim and purpose of making discovery of the documents in question in HCA 333/2016 and HCA 874/2015, then your client’s application is total misconceived, as the proper way for your client to deal with it is to make the appropriate applications for specific discovery in HCA 333/2016 and HCA 874/2015 respectively, rather making an application for the release of the implied undertaking, as your client has done in the 722 Proceedings.
…
Therefore, if the aim and purpose of your client in apply for the release of the implied undertaking is to use the documents provided by our client to the police not only for the civil actions between our respective clients but for some other purpose…then your client’s application is made on an untruthful basis that it is made only for the aim and purpose of making discovery of the documents in question in HCA 333/2016 and HCA 874/2015.
…
As your client’s application and the 722 Proceedings are from the outset a misconceived and unnecessary exercise (on the assumption that the aim and purpose of your client’s application are only for the discovery and use of the documents in question in HCA 333/2016 and HCA 874/2015), our client hereby makes the following proposal, without admitting that your client is entitled to be released from the implied undertaking:-
Each of our respective clients, i.e. WSH and Mrs. Wong, will on or before 16th March 2020…file and serve a further list of documents (if applicable) in each of HCA 874/2015 and HCA 333/2016 to make discovery of further documents (if any) in the possession, custody or power of our client (or your client, as the case may be) which are relevant to the action in question and necessary either for disposing fairly the action or saving costs.
The adjourned hearing of the Originating Summons to be held on 25th March 2020 at 10:00 a.m. before Recorder Yvonne Cheng, S.C. be vacated and adjourned sine die with liberty to restore at any time after 16th March 2020.
The costs of the 722 Proceedings be reserved.
In preparing the further lists of documents in HCA 874/2015 and HCA 333/2016, our client will consider whether any of the documents provided to the police should be discovered on a voluntary basis (without admitting that your client is entitled to the discovery of any of the documents provided to the police).
If notwithstanding the filing and service of further list(s) of documents in HCA 874/2015 and HCA 333/2016 on or before 16th March 2020 , your client still wishes to proceed with the 722 Proceedings, she will be at liberty to restore the hearing of the Originating Summons…
If the aim and purpose of your client’s application are only for the discovery and use of the documents in question in HCA 333/2016 and HCA 874/2015, then such aim and purpose will be fulfilled under the above terms proposed by us, and there will be no need for your client to proceed with the Proceedings.”
27. On 27 December 2019, the Plaintiff’s solicitors wrote back to the 2nd Defendant’s solicitors, rejecting their proposal in the 16 Dec Letter.
28. Supplemental lists of documents of the 2nd Defendant in HCA 874/2015 and HCA 333/2016 were eventually served on the Plaintiff on 20 April 2020 and subsequently filed on 7 May 2020 (due to GAP) (“D2’s SLODs ”).
29. It was agreed by the parties at the hearing that 56 out of the 64 Documents have eventually been disclosed by the 2nd Defendant either in D2’s SLODs. For the sake of clarity, the remaining 8 documents in dispute are LYP 1-2, 34, 37, 65-67 and 163. Out of these 8 documents, the 2nd Defendant claimed legal professional privilege in respect of 5. The remain 3 documents were not disclosed on the basis of relevance.
30. Pursuant to an Order made by Madam Justice Au- Yeung, on 11 May 2020, the 2nd Defendant filed an Amended Statement of Claim (the “ASOC ”) to which the Plaintiff filed her Amended Defence on 19 June 2020.
31. On 10 September 2020, the Plaintiff took out the Summons, seeking to include the Additional Documents in the OS. The relevance of the Additional Documents is said to have arisen from the aforesaid amendments.
32. On 21 September 2020, the 2nd Defendant filed the 2nd supplemental lists of documents for HCA 874/2015 and HCA 333/2016 following the 2nd Defendant’s amendment of pleadings (the “D2’s 2nd SLODs ”).
33. It was agreed by the parties at the hearing that some of the Additional Documents have either been disclosed by the 2nd Defendant in the relevant D2’s LODs or D2’s 2nd SLODs. The Plaintiff stated in its written submissions that for the purposes of the present application, the Plaintiff is content to proceed merely on LYP-286 to 289, 292 and 295 but reserves the right to apply for the balance and would ask for an order for liberty to apply in the future.
Applicable Principles
34. The implied undertaking, also referred to as Harman undertaking, is an undertaking to the court implied by law not to use documents disclosed by one party to the other for any collateral or ulterior purpose. [Hong Kong Civil Procedure 2020, O24, r14A: 24/14A/1 at page 680].
35. The rationale for the undertaking is that the “use of discovery involves an inroad, in the interests of achieving justice, upon the right of the individual to keep his documents to himself; it is an inroad that calls for safeguards against abuse, and these the English Legal system provides, in its own distinctive fashion, through the rules about abuse of process and contempt of court.” [Home Office v Harman [1983] 1 AC 280 (H.L.)].
36. Where release from such an undertaking is sought it is for the person who has obtained documents to demonstrate cogent and persuasive reasons why it should be released. Each case turns on its own facts and no general principle can be formulated beyond stating that the court will not release or modify the implied undertaking given on discovery save in special circumstances and where the release or modification will not occasion injustice to the person giving discovery. The burden of proof is on the applicant. [ibid and Secretary for Justice v Florence Tsang Chiu Wing (2014) 17 HKCFAR 739 at pages 749 – 750, at §23 per Ribeiro PJ.]
37. The undertaking and applications for release thereof are generally considered in the context of discovery in civil proceedings (e.g. Derek Joseph Parry v Nicholas Bryan Bentley [1994] 1 H.K.L.R. 265; Crest Homes Plc v Marks [1987] 3 W.L.R. 293; Dory v Wolf GmbH [1990] FSR 266).
38. However, an implied undertaking extends to documents obtained under criminal investigations and actions. Thus, in Taylor and Anor. v Director of the Serious Fraud Office [1999] 2 A.C. 177, it was held that:
“in order to ensure that the privacy and confidentiality of those who made, and those who were mentioned in, statements contained in unused material which had come into existence as a result of criminal investigation were not invaded more than was absolutely necessary for the purpose of justice, compliance by the prosecution with its obligation to disclose all such material to the defence generated an implied undertaking not to use the material for any purpose other than the conduct of the defence …”.
39. The Plaintiff submitted that an equivalent implied undertaking must apply to documents disclosed by the police to a person under investigation, under its obligation to make such disclosure, which are not just “unused material” but material which the police are considering in the context of criminal charges.
The Plaintiff’s Case
40. The Plaintiff argues that she should be released from the implied undertaking because:
(i) She is subject to an implied undertaking not to use the Documents and the Additional Documents (which came into her possession by reason of the criminal investigation against her) other than to defend herself in any criminal proceedings that may be brought against her. In other words, she cannot freely use them in the civil actions.
(ii) the Documents and the Additional Documents are relevant and necessary for her defence in the civil actions; and
(iii) a release of the implied undertaking would neither prejudice the 2nd Defendant nor the continuing police investigations.
41. The Plaintiff avers that the Documents and the Additional Documents are relevant as the 2nd Defendant had expressly stated to the Police that the allegations contained in the Complaint were the same as those which are the subject matters of HCA 333/2016.
42. The Plaintiff relies on the affidavit of Mr. Ma Kiu Fai, Detective Senior Inspector of Police to support her argument that the police investigations would not be prejudiced if release is granted. The relevant paragraph relied on by the Plaintiff stated that:-
“On 25 October 2018, the Plaintiff’s solicitors wrote to the 1st Defendant as for our view as to release of the implied undertaking, if any, regarding the disclosure of the documents. By letter dated 6th November 2018, Mr Wong Chu Wai for the 1st Defendant replied taking the view that the Applicant would have to seek the consent from the 2nd Defendant instead.”
43. It was the contention of the Plaintiff that, had the Police been concerned that the integrity of the investigation might be compromised by the release of the undertaking, the Police would have expressly withheld its own consent, instead of merely asking the Plaintiff to obtain consent from the 2nd Defendant.
44. In fact, Ms Siu confirmed at the hearing that although the investigation against the 2nd Defendant is still ongoing, the Police finds no real risk of interference with the investigation in the event of the implied undertaking being released.
The 2nd Defendant’s Case
45. According to its Skeleton Submissions, the 2nd Defendant opposes the application on three grounds:
(i) the OS is an abuse of process;
(ii) the Plaintiff has failed to discharge her burden for release of the implied undertaking;
(iii) of the remaining 8 documents which were not disclosed in the Supplemental Lists of Documents, the 2nd Defendant has claimed that:
(a) 3 of them (LYP 65-67) are irrelevant to HCA 874/2015 [and HCA 333/2016]; and
(b) 5 of them (LYP 1-2, 34, 37, 163) are subject to legal professional privilege and included in Part 2 of the relevant LODs, SLODs or 2nd SLODs.
46. In short, the 2nd Defendant contends that the present application is an abuse of process as the proper venue for the Plaintiff to seek discovery of documents for the purposes of HCA 874/2015 and HCA 333/2016 should be in those actions. If any of the Documents or the Additional Documents are not disclosed in the supplemental list of documents of the 2nd Defendant, the Plaintiff can always seek specific discovery of those documents in those civil actions if she finds them relevant and necessary for a fair disposal of the actions. Thus, it is premature and inappropriate to take out the present OS to circumvent the general discovery process in the proceedings.
47. The 2nd Defendant submits that the release, if granted, must relate to a particular purpose and it is the Plaintiff’s burden to give cogent reasons of why the release is necessary.
48. The 2nd Defendant contends that the Plaintiff has failed to discharge her burden of proof. In this regard, the 2nd Defendant avers that the Plaintiff has been opaque as to her intended use of the Documents because:
(i) the OS does not specify the intended use of the Documents should the undertaking be released;
(ii) it was stated in the Plaintiff’s affirmation that the purpose of the OS was to allow the Documents to be made the subject of discovery in HCA 874/2015 and HCA 333/2016. Yet, in the 14 Oct Letter, it was stated that “our application for release of the implied undertaking is wholly independent of the civil actions. ”; and
(iii) to date, the Plaintiff’s true intended use of the Documents remains unclear.
49. Second, the Plaintiff has failed to explain why a release is necessary, when there is no need for the Plaintiff to rely on knowledge gain from the Police. In this regard, the 2nd Defendant contends that the Plaintiff could depose to her knowledge of the existence of the Documents by virtue of her position as the former director and General Manager of the 2nd Defendant for the relevant years. In this way, the Plaintiff can seek specific discovery of the Documents in the 2 actions if the same were not disclosed by the 2nd Defendant in the supplemental list of documents.
50. Third, the 2nd Defendant submits that the wordings of the OS indicated that the Plaintiff is seeking a blanket release of all documents provided to the Police by the 2nd Defendant in support of its criminal complaints against the Plaintiff which documents were subsequently given to the Plaintiff by the Police. The 2nd Defendant contends that the Plaintiff has failed to particularize the relevance of the documents the Plaintiff is seeking to be disclosed in the OS. Even if relevance can be established, there is neither a special circumstance nor a cogent reason justifying the release from the implied undertaking which may allow for the Plaintiff’s potentially uninhibited use of the Documents.
51. On the other hand, the 2nd Defendant avers that a release of the implied undertaking would cause injustice in the following ways:
(i) the ongoing criminal investigation of the Plaintiff and her son might be compromised;
(ii) the release may affect others who are referred to, or have given statements, which are reflected in the Documents/Additional Documents;
(iii) the 2nd Defendant would be prejudiced as the Documents/Additional Documents are all internal records which are confidential; and
(iv) a release of the implied undertaking pursuant to the OS would effectively allow the Plaintiff’s use of the Documents for unlimited purposes, which might include retaliatory actions against the 2nd Defendant.
Discussions
52. The primary stance of the 2nd Defendant in its solicitors’ letter dated 28 May 2019 must have been erroneous. Whoever that senior counsel was, he/she must have overlooked the case of Taylor which clearly recognized the existence of an implied undertaking attaching to documents disclosed by and obtained from the authorities in the course of criminal investigation/prosecution. Ms Eu SC who appeared for the 2nd Defendant at the hearing no longer disputed the existence of the implied undertaking.
53. The said letter dated 28 May 2019 was also erroneous in that the Police had not imposed any condition or restriction on the use of the Documents/Additional Documents. This was an incorrect reading of the Police letter dated 6 November 2018. The use of the Documents/Additional Documents is governed by the Taylor’s implied undertaking and not by reason of any condition or restriction imposed by the Police.
54. At the hearing, Mr Hingorani, Counsel for the Plaintiff confirmed that the sole purpose of the application is to enable the Plaintiff to include the Documents and the Additional Documents in the Plaintiff’s lists of documents in HCA874/2015 and HCA333/2016. In other words, the Plaintiff is seeking to be released from the Taylor’s implied undertaking so that she can properly disclose the Documents and the Additional Documents and then rely on them in those civil actions. He further confirmed that the Plaintiff’s application is confined to the Documents and the Additional Documents and not in relation to all documents provided by the Police to her.
55. Whether or not the Plaintiff had made her intended use of the Documents/Additional Documents clear in the OS, her affidavits and/or in solicitors’ correspondence (which may however be relevant on question of costs), both counsel further accepted that if the Court is disposed to grant the release, the Court can do so with conditions restricting the purposes for which the Plaintiff could use the Documents/Additional Documents. This is an inherent power that the Court has in order to achieve justice between the parties and prevent undue prejudice on any party.
56. With these clarifications and concessions, the differences between the parties have become substantially circumscribed.
57. What constitutes collateral “use ” of the materials covered by an implied undertaking can sometimes be rather uncertain. Once the existence of an implied undertaking binding the Plaintiff is recognized, she would run the risk of contempt if she uses the Documents/the Additional Documents in any way other than for her defence in the criminal investigation/prosecution unless she has obtained prior release from that implied undertaking. In my view, the merely listing of any or all of the Documents/Additional Documents in her lists of documents filed in the 2 civil actions could arguably constitute collateral use of those documents. Similarly, if the Plaintiff applies for an order of specific discovery of the Documents/Addition Documents against the 2nd Defendant in the 2 civil actions, she would have to establish a prima facie case of possession, custody or power on the part of the 2nd Defendant. If she refers to the fact that she had been provided copies of the Documents/Additional Documents by the Police (which originated from the 2nd Defendant) in the course of the criminal investigation, it can also arguably be considered as a collateral use of the Documents/Additional Documents.
58. In the course of the hearing, Ms Eu SC no longer sought to argue that the Plaintiff’s application for release was an abuse of process. Ms Eu SC merely argued that the Plaintiff adopted a wrong procedure, she should have applied for specific discovery in the 2 civil actions. Ms Eu SC argued that the Plaintiff should not evade the requirements of seeking specific discovery by disguising her application as a release of the Taylor’s implied undertaking. This was the same stance taken by the 2nd Defendant’s solicitors in their letter dated 28 May 2019.
59. With respect, I have difficulties understanding why the only proper option for the Plaintiff is to apply for specific discovery of the Documents/Additional Documents against the 2nd Defendant in the 2 civil actions. The Plaintiff is in possession of copies of the Documents/Additional Documents. In any ordinary situation, a plaintiff can disclose in his list of documents any document which is in his possession which he considers relevant and useful to his case in the civil action. Even though he knows that the defendant may also possess the original or a copy of the same document, he is not obliged Taylor’s implied undertaking. In my view, the obvious course open to her is to apply for a release from that implied undertaking so that she can disclose the Documents/Additional Documents in her lists of documents in the 2 civil actions and then eventually make use of them in the trial of the 2 civil actions.
60. Ms Eu SC referred me to Horst Joachim Franz Geicke v. 1-Onasia Limited & oths., (unreported) HCA2379/2009. In that case, the Court was faced with 2 summonses issued by the plaintiff. The 1st Summons sought “leave to adduce 6 invoices/receipts in relation to a surveillance operation ”. The 2nd Summons was for “specific discovery of the invoices by the defendants ”. The 2 summonses were sought in the alternative. The case arose out of a background of matrimonial proceedings under which the wife engaged the defendants (private detectives) to conduct surveillance and investigative services relating to the plaintiff (husband). It was the plaintiff’s case that in the course of such surveillance, the defendants committed unlawful acts of conspiracy to injure; contravention of Personal Data (Privacy) Ordinance and breach of duty of confidence; and harassment/intimidation/trespass to person. In the action, the plaintiff had pressed for discovery but very limited documents were disclosed by the defendant. However, the invoices/receipts were subsequently disclosed by the wife in her application for maintenance pending suit in the matrimonial proceedings. The plaintiff took the view that the invoices/receipts were relevant to the action and thus issued the 1st Summons. The defendants objected to the application on the ground that the matrimonial proceedings in which the invoices/receipts were disclosed were private proceedings and the plaintiff was subject to an implied undertaking in respect of which the court in that high court action had no jurisdiction to release. In the hearing, counsel for the plaintiff indicted that if the court was minded to grant an order of specific discovery under the 2nd Summons, the plaintiff would not press for any order under the 1st Summons. The court thus proceeded to first consider the 2nd Summons of specific discovery. In opposing specific discovery, the defendants argued that a discovery order would have the effect of releasing the plaintiff from the implied undertaking given in the matrimonial proceedings which was private in nature. The court rejected this argument holding that the defendants had an independent obligation to disclose documents which were relevant to the issues in the high court action. The defendants then argued that since the plaintiff was in possession of the invoices/receipts, it was unnecessary for the court to order specific discovery. In rejecting this argument, Lok J. said at §28:
“…Although it is the Plaintiff’s argument that the Invoices are not subject to the implied undertaking because they are not documents disclosed under compulsion, the Plaintiff is not certain about his legal position. If the Plaintiff simply produces the Invoices in the instant proceedings, there is a danger that he would be liable for contempt for breach of the implied undertaking. It would therefore be necessary for the Plaintiff to make the present application. As I see it, the Plaintiff just insists on his right to require the Defendants to disclose documents which are relevant to the issues of the case. If the Defendant refuses to do so, an order of specific discovery is necessary.”
After disposing of the 2nd Summons in favour of ordering specific discovery, it was not necessary for Lok J. to deal with the 1st Summons. However, his Lordship did so because he had to deal with the question of costs in any event. Lok J. concluded [at §32] that due to the private nature of the matrimonial proceedings, if the plaintiff just proceeded with the application under the 1st Summons, the proper procedure was that such application should be made in the matrimonial proceedings. In the end, Lok J. [at §34] emphasized that there was nothing wrong for the plaintiff to proceed with the application for specific discovery under the 2nd Summons. The plaintiff had an option in this regard, either to apply in the matrimonial proceedings for leave to use the invoices/receipts in the high court action, or to insist on his right to request the defendants to disclose the invoices/receipts by way of specific discovery in the high court action.
61. It can immediately be seen that the Horst’s case does not support the proposition that “applying for specific discovery ” is the only proper course or procedure open to the Plaintiff in this case. Lok J. clearly accepted that it was open to the plaintiff to apply to the matrimonial court for leave to use the invoices/receipts in the high court action. In the present case, the implied undertaking did not arise out of any action/proceedings. It arose out of the principles in the Taylor’s case. There is no “court ” to go back to for seeking leave to make use of the Documents/Additional Documents in the 2 civil actions. The Plaintiff is thus required to invoke the jurisdiction of this Court by instigating the OS proceedings. On the authority of Horst’s case, another option seems to be open to the Plaintiff. She can apply for specific discovery in the 2 civil actions. However, Lok J. was not faced with any argument as to whether in the course of making an application for specific discovery, if the plaintiff make reference to the invoices/receipts with a view to showing that the defendants were in possession of the same, the plaintiff would arguably be “using ” the invoices/receipts for collateral purpose and hence could technically be in breach of the implied undertaking. Lok J. surely accepted that if the plaintiff simply disclosed the invoices/receipts in his list of documents and then adduce them as evidence in the trial, the plaintiff would likely be liable for contempt for breach of the implied undertaking. In my judgment, the Plaintiff is entitled to instigate the OS proceedings to seek the release of the Taylor’s implied undertaking before proceeding to list them in her lists of documents in the 2 civil actions with the ultimate purpose of using them in the trial of the 2 civil actions.
62. I further reject the argument of Ms Eu SC as set out in §49 above as being unrealistic. It is unlikely, if possible at all, for the Plaintiff to be able to genuinely and definitively distinguish whether her knowledge of the existence of any of the Documents/Additional Documents arose out of her position as former director and general manager of the 2nd Defendant or whether they arose wholly or in part by reason of having been supplied with copies thereof by the Police. The Plaintiff was justified in not placing herself under any risk of being in contempt by breaching the Taylor’s implied undertaking.
63. On the question of relevance, I accept the submissions of Mr Hingorani. The Documents were supplied by the 2nd Defendant to the Police pursuant to the Compliant which raised the same allegations made by the 2nd Defendant in HCA 333/2016. It is important to note that of the 64 documents, all but 8 had eventually been disclosed by the 2nd Defendant either in the lists of documents or supplemental lists of documents in the 2 civil actions. They must have been regarded by the 2nd Defendant as being relevant. Of the remaining 8, only 3 of them are continued to be asserted by the 2nd Defendant as being not relevant. They are LYP-65, 66 and 67. As for the remaining 5, namely LYP-1, 2, 34, 37 and 163, they have been listed under Part 2 of the relevant lists of documents or supplemental lists of documents because legal professional privilege is claimed. In other words, the 2nd Defendant is not suggesting that these 5 documents are irrelevant. In short, there are only 3 out of 64 documents that are asserted by the 2nd Defendant as being irrelevant. In the context of the present application, it is my view that I should not take a narrow view on the issue of relevance. I am satisfied by Mr Hingorani’s submissions that the 2nd Defendant is entitled to view LYP-65, 66 and 67 as being relevant to her case in the 2 civil actions such as to justify her application for release of the Taylor’s implied undertaking so that she could include them in her lists of documents and use them in the trial of the 2 civil actions.
64. As for the relevance of the Additional Documents, Ms Eu SC referred me to Annex B to her Supplemental Skeleton Arguments. It seems that 10 of the 15 Additional Documents have already been disclosed by the 2nd Defendant in its lists of documents or supplemental lists of documents in the 2 civil actions. They must have been regarded as relevant. Out of these 10 documents, there are 2 documents (namely LYP-289 and LYP-295) for which legal professional privilege is claimed in respect of parts of them. Then, there are the remaining 5 documents (namely LYP-286, 292, 427, 428 and 429) which the 2nd Defendant claims legal professional privilege. In other words, all the Additional Documents are not challenged as to their relevance to the 2 civil actions.
65. In respect of the 2nd Defendant’s arguments of potential injustice (see §51 above), I do not see any merits in those arguments particularly in light of the submissions of Ms Siu that:
(i) the criminal investigation against the Plaintiff is still ongoing despite the fact that bail money had been returned to the Plaintiff; and
(ii) the 1st Defendant does not find any real risk of interfering with the criminal investigation and thus will not oppose the Plaintiff’s application.
66. In my judgment, the 2nd Defendant has raised a valid objection in relation to those documents which it has claimed to be protected by legal professional privilege. Ms Eu SC referred me to British Coal Corp. v. Dennis Rye (No.2) [1988] WLR 1113 which was endorsed by our Court of Appeal in Citic Pacific Ltd. v. Secretary for Justice [2012] HKLRD 701. In the British Coal Corp case, the English Court of Appeal held that providing documents to the police for the limited purpose of assisting in the conduct of a criminal investigation and of a criminal trial does not constitute any waiver of the legal professional privilege attached for the purpose of civil proceedings. Thus, the fact that the Plaintiff came to possess these documents through the Police does not constitute any waiver and loss of privilege. Therefore, if I grant an order releasing the Taylor’s implied undertaking in respect of LYP-1, 2, 34, 37, 163, 286, 289, 292, 295, 427, 428 and 429 (the “LPP Disputed Documents ”), the Plaintiff would be able to disclose them in her lists of documents and use them and their contents in the trial of the 2 civil actions, thereby flouting the legal professional privilege that may be attached to them.
67. Mr Hingorani made supplemental written submissions on the proper procedure to be adopted when legal professional privilege is claimed and referred me to Hong Kong Civil Procedure 2020 at §24/5/6A. He then made extensive written submissions on why legal professional privilege does not attach to the aforesaid documents. I do not find it necessary to deal with these submissions because I accept the submissions of Ms Eu SC that the issue of legal professional privilege should best be resolved in the 2 civil actions. If I simply grant a release of the implied undertaking in respect of these dispute documents to the extent that the Plaintiff is permitted to use them for the purpose of making an application for specific discovery against the 2nd Defendant in the 2 civil actions, then the Plaintiff can make the application and the 2nd Defendant can put up her resistance on the basis of legal professional privilege with appropriate supporting affirmation in accordance with the procedures laid down by the Citic
Disposition
68. In the circumstance, I am satisfied that there are cogent and persuasive reasons to release the Plaintiff from the Taylor’s implied undertaking in respect of the Documents and the Additional Documents for the purposes of which I shall specify and restrict thereto:-
(i) in respect of the Documents and the Additional Documents other than the LPP Disputed Documents, I release the 2nd Defendant from the implied undertaking to the extent that she can use them in the trial of HCA 874/2015 and HCA 333/2016 (or such other actions consolidated therewith); and
(ii) in respect of the LPP Disputed Documents, I release the 2nd Defendant from the implied undertaking to the extent that she can make use of them in her application for specific discovery of the LPP Disputed Documents against the 2nd Defendant in HCA 874/2015 and HCA 333/2016 (or such other actions consolidated therewith).
Costs
69. The Plaintiff is the substantial winning party in this OS. However, I am of the view that the Plaintiff should not be fully awarded costs as against the 2nd Defendant for the following reasons:-
(1) I agree to an extent with Ms Eu SC that the Plaintiff had not been entirely clear in the OS, her affidavits and solicitors’ correspondence as to the exact purpose and extent of use of the Documents. The OS was also unclear in that it could reasonably be interpreted as applying to all documents provided by the 2nd Defendant to the Police. In fact, I found it necessary to seek clarifications from Mr Hingorani at the outset of the hearing;
(2) The application to amend the OS to include the Additional Documents was only made shortly before the hearing such that the 2nd Defendant had no fair opportunity to file any affirmation in reply;
(3) The 2nd Defendant had at least made a reasonable proposal by the 16 Dec Letter and the 2nd Defendant did subsequently make voluntary disclosure of most of the Documents and the Additional Documents in its lists of documents and/or supplemental lists of documents in the 2 civil actions. Acceptance of the said proposal could have avoided further hearing and costs in these proceedings or at least substantially curtailed the scope of disputes in this hearing. Such a proposal, if accepted, could have channeled all remaining disputes on LPP to be decided in the 2 civil actions which is effectively the spirit of my eventual orders; and
(4) in my view, solicitors for both parties were unnecessarily embroidered into peripheral and sometimes semantic arguments in correspondence which must have obliterated their views and resulted in a failure to appreciate the real issues at hand and the most pragmatic and cost-saving method of resolving their differences.
70. Costs is always in the discretion of the Court and taking a broad brush approach, I am of the view that the Plaintiff should only be entitled to 50% of the costs of the OS against the 2nd Defendant.
71. In respect of the 1st Defendant, it is an innocent party caught in the fire line between the Plaintiff and the 2nd Defendant. Ms Siu took a neutral stance and had offered assistance to this Court. The affirmation filed by the 1st Defendant also provided assistance and clarification to this Court. Ms Siu sought an order of costs against the Plaintiff whether or not her application is successful.
72. The Plaintiff has succeeded in obtaining the permission to make use of the majority of the Documents/Additional Documents for the benefit of running her case in the 2 civil actions. The 1st Defendant has taken a neutral stance throughout and provided valuable assistance to this Court. In my view, the 1st Defendant should not be deprived of the legal costs it had reasonably incurred by reason of the Plaintiff’s application which resulted in a litigious benefit to the Plaintiff in the 2 civil actions. I will make an order nisi that the costs incurred by the 1st Defendant in the OS be paid by the Plaintiff to the 1st Defendant to be taxed on party-and-party basis if not agreed. However, I will also make an order nisi that the costs so paid by the Plaintiff to the 1st Defendant shall be made part of the costs in the Plaintiff’s cause in HCA 874/2015 and HCA 333/2016 (or such other actions consolidated therewith). In other words, if the Plaintiff succeeds in her defence in HCA 874/2015 and HCA 333/2016 (or such other actions consolidated therewith), she would be able to recover these costs (paid to the 1st Defendant) against the losing party/parties in those actions.
73. The aforesaid orders nisi shall become absolute if no application for variation is made within 14 days. I will also give general liberty to apply. Lastly, I thank counsel for their assistance.
(Jason Pow SC )
Recorder of the Court of First
Instance of High Court
Mr Jeevan Hingorani and Mr Lawrence Cheung, instructed by WL Yuen & Co, for the Plaintiff
Ms Carmen Siu, instructed by Department of Justice, for the 1st Defendant
Ms Audrey Eu SC leading Ms Tiffany Chan, instructed by Henry Wai & Co, Solicitors LLP, for the 2nd Defendant