XCHRX NG CHIU YUEN JACOB v. LAM CHE CHEUNG

HCA 3364/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3364 OF 1999

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J U D G M E N T

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Introduction

1. At the hearing on 20 July 2000, I dismissed 3 interlocutory applications taken out by the Plaintiff with costs. The following are the reasons for the decision.

2. The Plaintiff commenced this action on 1 March 1999. Numerous complaints were made in the Statement of Claim against the Defendant, including misleading the Presiding Officer of the Lands Tribunal in applications No. NT256 of 1997 and NT153 of 1998, and perjury and making defamatory remarks in those proceedings. The other complaints are not easily comprehensible from the Statement of Claim but appear to be related to the Defendant's earlier complaints to the Office of the Privacy Commissioner for Personal Data ("the Privacy Commissioner") and the Social Welfare Department ("the SWD") against the Plaintiff.

3. On 20 September 1999, leave was given by the Master for the Plaintiff to amend his Statement of Claim. This was filed on 27 September 1999. Upon the Defendant's application, and after a hearing on 25 November 1999, the Master struck out the Amended Statement of Claim pursuant to Ord. 18 r. 19 and ordered costs to be paid by the Plaintiff forthwith on full indemnity basis.

4. The Plaintiff took out an application on 19 January 2000 (about 2 months after the date of the said Order) asking for an extension of time to appeal against the said Order. On 2 February 2000, the Plaintiff's said application was heard and was adjourned to a date to be fixed. One of the reasons for the adjournment was that the Plaintiff intimated at the hearing he had applied for legal aid.

5. Thereafter, a number of related applications were taken out by the Plaintiff including the following:-

(a) on 28 February 2000, an application that a Miss Carmen Lam of the SWD and a Miss Amy Chow of the Privacy Commissioner provide evidence before trial (the "Feb application");

(b) on 14 March 2000, an application for leave to issue a subpoena for the representatives of the SWD and the Privacy Commissioner to attend as witnesses in chamber hearing (the "Mar application");

(c) on 24 May 2000, an application for the Defendant to produce documents and to answer questions set out in the summons (the "May application").

6. The Feb application and Mar application were heard on 28 March 2000, attended by all concerned including counsel acting for the Privacy Commissioner and the SWD. By a Memorandum of Notification dated 27 March 2000, the Director of Legal Aid ("DLA") informed the Court that the Plaintiff had applied for legal aid. This application was later refused and a Memorandum of Notification of refusal dated 2 May 2000 was filed into Court. However, as the Plaintiff's legal aid application was made on or about 27 March, the hearing on 28 March had to be adjourned.

7. The Feb application, Mar application and May application were all heard on 20 July 2000. By a Memorandum of Notification dated 17 July 2000, DLA informed the Court that the Plaintiff had applied for legal aid. Further, at about 9:15 a.m. on 20 July, the Plaintiff telephoned the staff of Court and informed that he was hospitalized in Tuen Mun Hospital and could not attend the hearing. The Plaintiff also promised to fax a copy of the medical chit to Court during the telephone conversation. However, by about 10:30 a.m., the Court has still not received any further message from the Plaintiff.

Lack of Bona Fide in Prosecuting the Applications

8. Because of the matters set out above, I considered that there was good reason to conclude that the Plaintiff has no real intention of proceeding with the said 3 applications and he was employing a delaying tactic. The Defendant complained the Plaintiff did so because the Plaintiff wanted to delay the taxation of the cost he was ordered to pay to the Defendant. I did not know (and it was unnecessary to know) if that was the real reason but I was satisfied that the Plaintiff lacked bona fide in taking out and/or pursuing these applications.

9. Section 15(4) of the Legal Aid Ordinance, Cap. 91 provides that:-

"Where any memorandum [of notification] is ... filed [by DLA], then, unless otherwise ordered by the court in which the memorandum is filed, all proceedings in the action .... shall, by virtue of this section, be stayed for such period ... as may be prescribed ... " (underline supplied).

The period of stay prescribed by regulation 7A of the Legal Aid Regulations is 42 days.

10. Taking into account the above matters, I considered it appropriate to order that the stay of proceedings under s. 15(4) of Cap. 91 should be uplifted forthwith. I also considered it appropriate to proceed with the hearing despite the Plaintiff's absence.

11. By reason of the above matters, I found that the 3 applications ought to be dismissed on this ground alone.

Lack of Merits in the Applications

12. Even if the Plaintiff had acted bona fide in taking out and prosecuting the 3 applications, I found that they ought to be dismissed by reason that they had no merits. In coming to this conclusion, I have taken into account the written skeleton submissions filed by all parties, including those filed by the Plaintiff.

(1) The Feb Application

13. This application seeks an order against an officer of the Privacy Commissioner and an officer of the SWD. It was opposed by both of them. Its nature is in substance the same as the Mar application. In fact, the Mar application was probably taken out as a result of the endorsement made by the Court on the Feb application: "The [Feb] application is treated as an application for leave to issue a subpoena for the attendance of witness for proceedings in Chambers (White Book, para. 38/19/3). Please fix an inter partes hearing of the application (service on the parties affected by the subpoena) ... ".

14. The skeleton submission of the Privacy Commissioner relied on the following reasons:-

(a) the Privacy Commissioner and his officers have a duty to maintain secrecy in respect of all matters that come to their knowledge in the performance of their functions and the exercise of their powers: s. 46(1)of the Personal Data (Privacy) Ordinance, Cap. 486;

(b) it is open to the Plaintiff to apply for discovery against the Defendant in the proceedings.

15. The skeleton submissions of the SWD relied on the following reasons:-

(a) the Plaintiff had been receiving social security benefits since May 1996 because of unemployment;

(b) the SWD received a complaint of suspected fraud against him. After investigation, the SWD concluded in February 1999 that the complaint was not substantiated;

(c) the information asked for by the Plaintiff belongs to a class which falls within public interest immunity. The matter has been considered by the Chief Secretary for Administration and she certified the disclosure of this information to be injurious to public interest;

(d) it is open to the Plaintiff to obtain the information from the Defendant by interrogatories.

16. When the Privacy Commissioner and the SWD submitted that it should be open to the Plaintiff to seek discovery and/or interrogatories, they were probably unaware that the information was sought in relation to the Plaintiff's application for extension of time to appeal against the Master's Order. They were also probably unaware that the relief sought in this application was related to a chamber hearing (that is, the said application for extension of time). Save as to this matter (which will be dealt with below), I agreed with the arguments of the Privacy Commissioner and the SWD.

17. Subpoenas may not issue to compel the attendance of a witness for the purpose of proceedings in chambers, except with leave: The Supreme Court Practice 1999, Vol. 1, para. 38/19/3. The Court has a discretion to set aside subpoenas. In doing so, the Court is concerned to see that parties do not abuse their privilege of summoning witnesses: The Supreme Court Practice 1999. Para. 38/19/5. I consider such a concern applies with equal (if not greater) vigour regarding subpoenas for the purpose of chamber hearings.

18. The legal principles underlying the propriety of issuing subpoenas are as follows:-

"In his judgment, Yam J set out the general principles applicable to the issue of subpoena duces tecum with extensive supporting citations ...

1. There shall be no discovery from a non-party to an action [subject to certain exceptions ... ] ... ;

2. A subpoena should not be used for making discovery only [and the Court of Appeal observed that the reference to the word "only" can be misleading] ... ;

3. A subpoena should not be used as a fishing exercise for documents nor speculative ... ;

4. A subpoena should not be oppressive to the witness when, say for example, the terms are too wide. The party issuing the subpoena ... has to show that these witnesses are required to produce relevant and admissible evidence for trial and that those documents to be produced must be required and are necessary for the fair disposal of the case ... ":

see To Kan-chi v. Pui Man-yau [1998] 3 HKC 371 at pp. 377-379) (CA). The above test was accepted to be correct in To Kan-chi and re-affirmed by the Court of Appeal in Brisilver Investment Ltd. v. Wong Fat Cho, CACV No. 251 of 1999.

19. The Court of Appeal went on to apply those principles to the facts in To Kan-chi as follows:-

"... I turn then to Mr Barlow's submission on relevance. This he founds upon the following words of Steyn J ... in The Lorenzo Halcoussi [1988] 1 Ll. Rep. 180 at 184:

'... the document or documents to be produced must be required or relevant and admissible evidence or must at least arguably and on reasonable grounds come in that category ...

And ... the burden is on the party defending the subpoena to show that it is not a mere fishing or speculative expedition, but that the subpoena relates to documents which are likely to exist ... '

There can be no doubt, Mr Barlow submitted, that the files in question are known to be in existence. However, I do not read the latter words of Steyn J as a proposition that if documents are known to exist, then the relevant subpoena cannot be a mere fishing or speculative expedition. That may be so where there is no question of relevance or admissibility. But here both matters are very much in issue since the contents of most of the documents in the files are not actually known. Accordingly, in the particular circumstances, it would be in the nature of fishing or speculation to require all those documents to be produced, in effect to see which, if any, documents would be material evidence required, or relevant and admissible evidence (and in effect which would not). That, incidentally, is what discovery entails." (at p. 383) (italics and bold type supplied).

20. Other judgments relating to the proper use of a subpoena duces tecum included:-

(a) OTB v. Coopers & Lybrand and others, HCA No. A5764 of 1986;

(b) Computer Personnel Ltd. v. Digital Equipment (HK) Ltd. [1987] 1 HKC 140;

(c) Hsin Chong Construction Co. Ltd. v. Hong Kong & Kowloon Wharf & Godown Ltd. [1986] HKLR 987;

(d) Morgan v. Morgan [1977] Family Law Report 123;

(e) Marcel v. Commissioner of Police of the Metropolis [1992] Ch. 225.

The reasoning adopted in these decisions was inter alia that a party cannot use a subpoena duces tecum for the purpose of general discovery of documents. This is especially so if the subpoena relates to documents possessed by a stranger to the proceedings.

21. The Feb application was in the nature of (and the Mar application was in fact) an application for leave to issue subpoenas. Without going into the details, I found that they had fallen foul of all the underlying principles set out above.

22. These applications were clearly attempts of discovery from non-parties. Their terms were couched loosely and therefore they amounted to a "fishing" exercise and were speculative. The Plaintiff has no idea as to what he was looking for precisely, or as to precisely what relevant information (if any) would be contained in the documents sought. If some of the documents should contain relevant information, it was unknown how many documents were involved.

23. For the above reasons, the Feb application should be dismissed.

(2) The Mar Application

24. As stated above, the nature of the Mar application is the same as that of the Feb application. The reasons for dismissing the Feb application have been set out above and the Mar application should be dismissed for those reasons.

(3) The May Application

25. The validity of the May application has to be considered in the overall context of this action. The Master has given the Plaintiff an opportunity to set out his claim properly by giving him leave to amend his Statement of Claim. Despite the amendment, the Master considered that the Plaintiff's claim was liable to be struck out pursuant to Ord. 18 r. 19.

26. In these circumstances, it is all the more important for the Plaintiff to show to the Court that he was already well-equipped with the proper legal and evidential basis to bring this action against the Defendant. It is trite law that only claims which are properly based (both in law and evidence) and formulated should be allowed to be brought. To allow litigants to "fish" for evidence by way of discovery and/or interrogatories would be to turn this principle on its head.

27. A "fishing" interrogatory was described as one asked "in order to enable the party [interrogating] to see if he can find out a case, either of complaint or defence, of which at present he knows nothing": see Gatley on Libel and Slander (1998) 9th Ed., para. 30.84, text to n. 81 citing Hennessy v. Wright (No. 2) (1890) 24 QBD 445n, 448.

28. Likewise, discovery will not be ordered to help a party to make out a case: British and Foreign Contract Co. v. Wright (1883-4) 32 WR 413; Parnell v. Walter (1890) 24 QBD 445; Evans v. Granada [1996] EMLR 429.

29. The May application also amounted to a "fishing" exercise and was in breach of the above principles. For this reason, it should also be dismissed.

The Medical Chit Subsequent to the Hearing

30. A medical chit was faxed to Court by the Tuen Mun Hospital at about 12 noon on 20 July, after the hearing has finished. The faxed document stated that the Plaintiff was admitted on 19 July 2000 because of "vestibular neuritis" (that is, some kind of nerve inflammation) and was still hospitalized and unfit to go elsewhere.

31. As stated above, even if the Plaintiff was bona fide in taking out the 3 applications, I did not find that there were merits in any of them. The Plaintiff has filed into Court several sets of detailed written skeleton submissions. In these circumstances, I did not consider that he had been prejudiced by his not appearing in person at the hearing, or by not being able to make oral submissions then.

Costs

32. There was no apparent reason why costs should not follow the event. I therefore ordered that the Plaintiff should pay the costs of the application to the Privacy Commissioner and the SWD to be taxed if not agreed.

33. The Defendant has been acting in person in this action. I proposed to fix the costs of the 3 applications as regards him pursuant to Ord. 62 r. 9(4)(b). The Defendant claimed that he incurred about 90 hours in preparing for the 3 applications. While it is true that detailed affirmations and skeleton submissions have been filed by the Defendant, the contents of these documents are sometimes repetitive and/or irrelevant. The costs for the preparation of these documents should be suitably reduced to reflect this. The Defendant also claimed that he had suffered pecuniary loss (within the meaning of Ord. 62 r. 28A). Despite these claims, I consider that the total costs to which he should be entitled should not be more than the equivalent of 25 hours' work. The hourly rate allowed by Ord. 62 r. 28A(3) is $200.00. I therefore awarded $5,000.00 costs to the Defendant.