CHAN HO YEUNG JASON v. DR CHANG WAI JULIAN

                                                          HCPI 248/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.248 OF 2003

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J U D G M E N T

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1. This is an appeal by the plaintiff against the order of Master Kwang dismissing the plaintiff’s application for non-party discovery against the Hong Kong Jockey Club (“HKJC”).

Background

2. The plaintiff was a jockey licensed by HKJC to ride in Hong Kong.  In a riding accident on 13 November 1996 when the plaintiff was riding at Happy Valley, he sustained a fracture of his upper left femur.  He was initially treated in Canossa Hospital by a doctor other than the defendant.  Subsequently, the plaintiff was treated by the defendant.

3. The plaintiff’s claim in this action brought against the defendant is that the treatment given by the defendant was negligent and such negligent treatment has left the plaintiff disabled and unable to ride professionally as a jockey to the same standard as before the accident.

4. Both liability and quantum are disputed by the defendant in this action.

5. The plaintiff’s claim for loss of earnings estimated up to June 2004 in the Statement of Damages is just below $6 million.

Plaintiff’s application for non-party discovery

6. The plaintiff’s application for non-party discovery was by Summons in which six categories of documents were sought by the plaintiff against HKJC.  Some of those six categories of documents were supplied by the HKJC to the plaintiff before the hearing before the Master.  After the hearing before the Master, and at the indication of the Master, some other documents had been supplied by HKJC to the plaintiff pursuant to the Personal Data Privacy Ordinance.

7. Thus at the hearing of the appeal before me, the plaintiff’s request for non-party discovery (which application is disputed by HKJC) had dwindled down to three items as follows :

(a) documents re disciplinary hearing against the plaintiff by the HKJC when his licence was not renewed;

(b) documents recording payments by the HKJC for physiotherapy treatment of the plaintiff;

(c) confirmation by HKJC of receipt of letters from the defendant.

I shall deal with each of the three items in dispute in turn.

(A)     Disciplinary hearing

8. Whilst the plaintiff was on sick leave following the accident, he was investigated for corruption by HKJC and the ICAC and was later prosecuted.  He was however acquitted when the court ruled that he had no case to answer.

9. By that time, he was fit to resume riding on the advice of the defendant.  The plaintiff applied for his racing licence but that application was refused by the HKJC.  No reason has been given to the plaintiff for the refusal of his riding licence.

10. The plaintiff submits that such refusal to grant him a riding licence was due either to a suspicion of corruption notwithstanding his acquittal by the court or the HKJC’s concern as to his ability to race horses following his accident and injury.

11. It is the plaintiff’s contention that it is the latter of the two reasons, since he was acquitted of the corruption charge and since he is now physically disabled and cannot race horses as well as before his accident.

12. The plaintiff contends that the documents sought relating to disciplinary hearings are therefore relevant and necessary to ensure that loss of earnings are calculated on the correct basis.

13. On the other hand, it is contended by the HKJC that in asking for “documents re disciplinary hearing against the plaintiff when his licence was not renewed” such a request by the plaintiff or his solicitors was quite misconceived since licences are granted or renewed by the licensing committee and not in a disciplinary hearing.  In any event, the minutes of that licensing hearing whereby the plaintiff’s licence was not renewed has already been provided to the plaintiff.

14. It is further contended by HKJC that documents or the minutes relating to any other disciplinary hearing as regards the plaintiff is not relevant because they will not deal with the reason for not renewing his licence. 

15. In my view, what the plaintiff is seeking is the reason why his licence was not renewed by the HKJC.  It has not been disputed by the plaintiff that the minutes of the licensing meeting when his licence was not renewed has already been provided to him.

16. I must also accept that other disciplinary proceedings in respect of the plaintiff, not being a meeting of the licencing  sub-committee, will not deal with the reason for not renewing his licence.

17. In the absence of identifying any specific document in which the reason for not renewing his licence is or may be stated, the plaintiff’s request for non-party discovery must fail.

(B)    Payment for physiotherapy treatment

18. It is common ground that the HKJC had paid for all of the plaintiff’s physiotherapy treatment and that no claim for such payment is made by the plaintiff in the action against the defendant.

19. The reason given by the plaintiff as to why such documents are sought from the HKJC is that such documents would show the dates of treatments and or other information contained therein which may be relevant, such as to cross check and make sure that details contained in the medical records of the defendant are correct.

20. Order 24, rule 7A(3)(b) makes it abundantly clear that the plaintiff, in asking for non-party discovery, must show that the documents are relevant to an issue arising or likely to arise in the claim.

21. In the present case, the reason given by the plaintiff for seeking this category of documents is no more than fishing. 

22. In the circumstances, I am not prepared to accede to the application for this category of documents.

(C)    Correspondence between defendant and HKJC

23. This request arises as follows.

24. The plaintiff has already been supplied with the correspondence between the defendant and HKJC by the defendant.

25. However, when the plaintiff requested from HKJC the correspondence passing between HKJC and the defendant, they had been provided with some of the correspondence by HKJC, but which was less than what had been disclosed by the defendant.

26. The plaintiff was not happy with that and wanted HKJC to confirm that they have also the “missing correspondence”.  To this request, HKJC did not respond.

27. The application by the plaintiff under this head is now for confirmation by HKJC that they have also the “missing correspondence” between it and the defendant.

28. I am of the view that the plaintiff’s application under this category is wholly misconceived.  HKJC is not a party to this action.  The plaintiff is only entitled to disclosure of specific documents from a non-party.  It is not entitled to request confirmation by the non-party in the manner that the plaintiff is now seeking.  This is particularly so since the correspondence between the defendant and HKJC has already been disclosed by the defendant and the plaintiff has been made aware of such correspondence by the defendant.

29. The application by the plaintiff under this category must be dismissed.

DELAY

30. There was a delay of almost four months by the plaintiff in bringing this appeal against the order of the Master.

31. The Summons was heard by Master on 16 June 2004 and the application dismissed by the Master at the hearing.  The time for appealing the Master’s order would have expired by the end of June 2004.

32. The Notice of Appeal for appealing the Master’s order of the 16 June was not filed until 25 October 2004.

33. The reason put forward for such delay was that the plaintiff was on Legal Aid, that the solicitor had to take instructions from the plaintiff was, at the time, working and living in Macau, and that the plaintiff’s solicitors had to liaise with the defendant’s solicitors before proceeding with the appeal.

34. I do not accept that the reasons put forward by the plaintiff can justify a delay of almost four months in lodging this appeal.

35. That coupled with the fact that there is absolutely no merits whatsoever in the application dealt with in the appeal is quite sufficient for this court to decline giving an extension of time for this appeal by the plaintiff from the Master’s order.

Conclusion on the application for non-party discovery

36. In so far as the substantive appeal is concerned, the plaintiff’s appeal is dismissed.

37. The substantive order of the Master do stand in so far as the application for non-party discovery is concerned.

Costs appeal

38. Quite apart from the appeal against the substantive order of the Master relating to the plaintiff’s application for non-party discovery, the plaintiff is also appealing against the costs order of the Master.

39. Upon dismissing the plaintiff’s application, the Master awarded costs of that application to the non-party against the plaintiff i.e. that costs followed the event.

40. The plaintiff submits that HKJC should not have been awarded full costs, even when the plaintiff’s application before the Master was dismissed, in view of the fact that a substantial part of the documents requested in that Summons had been supplied by HKJC before the hearing.

41. The Master was clearly exercising his discretion when making the costs order after dismissing the plaintiff’s application.

42. Whilst it is true that much of the documents requested were supplied by HKJC before the Summons was heard by the Master, it is also true that the plaintiff, at the hearing before the Master pressed on with the remainder of the Summons and the Master ruled against the plaintiff entirely on the remainder.

43. In the circumstances of this case, I do not see that the Master was wrong in principle to have exercised his discretion the way he did.  The disputed matter argued before the Master very likely superceded those documents conceded by HKJC and supplied by it prior to the hearing before the Master.

44. Accordingly, I do not feel that I should interfere with the costs order ordered by the Master, especially since the plaintiff once more failed in the entirety in this appeal before me.

45. The costs order of the Master should stand.

Costs of this appeal

46. The plaintiff having failed in this appeal before me, I can see no good reason in this case why the plaintiff should not bear the costs of the appeal. 

47. Accordingly, there will be a costs order nisi that the plaintiff pays HKJC the costs of the appeal to be taxed if not agreed.

48. The above costs orders, both before the Master and in this court relating to the application as well as the hearings is to be borne by the plaintiff and will not be ordered to be in the cause of the action between the plaintiff and the defendant.

49. There is just one further costs order that I should make which is the costs relating to those documents which HKJC did provide to the plaintiff prior to the hearing before the Master will of course be paid by the plaintiff to HKJC, but those costs will be ordered to be in the cause of the action between the plaintiff and the defendant herein.