HO YUEN KI WINNIE AND ANOTHER v. HO HUNG SUN STANLEY AND ANOTHER

HCMP 1009/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1009 OF 2009

(ON AN INTENDED APPEAL FROM HCA NO. 391 OF 2006)

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BETWEEN

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J U D G M E N T

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Hon Le Pichon JA:

1.  This was the plaintiffs’ renewed application under O. 59 r. 2C(1) of the Rules of the High Court for leave to appeal from an order of A. Cheung J dated 29 April 2009 whereby the plaintiffs were ordered to give specific discovery. At the conclusion of the hearing judgment was reserved which we now give.

2.  On 25 May 2009 the judge refused to grant leave to appeal but ordered a stay pending the plaintiffs’ application to this court for leave to appeal. On 13 July 2009 Cheung JA refused the plaintiffs’ application on the basis of written submissions only.

Background

3.  The opening paragraphs of the judgment below give a clear picture of the underlying action:

“2. The present action is a libel action. Amongst other things, the 1^st plaintiff complains that the 1^st defendant has defamed her by falsely alleging that she was suffering from senile dementia/Alzheimer’s disease (老人痴呆症), and that she was clearly lying when she said she intended to donate $6 billion to charity – any money that she would donate would in fact go back to her via the donee, the 2^nd plaintiff, belonging to her.

3. The 1^st defendant has in his pleading pleaded the so-called ‘Lucas-Box’ meanings of the words complained of: See Lucas‑Box v Newsgroup Newspapers Ltd [1986] 1 WLR 147. In relation to the first matter, the 1^st defendant pleads that there were reasonable grounds to suspect that the 1^st plaintiff was experiencing the first signs of a brain disease, which was impairing her ability to reason and to think and to engage in social intercourse. In relation to donating to charity, the Lucas-Box meaning pleaded is that ‘any donations made to [the 2^nd plaintiff] would be used by [the 2^nd plaintiff] towards furthering [the 1^st plaintiff’s] personal and political agenda and purposes’.”

4.  The first defendant applied for specific discovery of documents relating to the two broad issues identified above, namely, (1) the first plaintiff’s mental condition and (2) her charitable donations.

5.  In relation to the allegation or belief that the first plaintiff had been suffering from a brain disease that impaired her ability to reason and to think, and to engage in social intercourse, the first defendant sought discovery of two categories of documents:

(1) the first plaintiff’s medical records that diagnose or mention any brain disease or disorder that she may have had which has resulted in impairment to her ability to reason and to think and to engage in social intercourse;

(2) documents containing any medical complaints by the first plaintiff of any impairment to her ability to reason and to think and to engage in social intercourse.

These two classes of documents are hereafter together referred to as “the medical records”.

6.  While the first defendant had specified senile dementia/Alzheimer’s disease as the condition or disease afflicting or believed to be afflicting the first plaintiff, the Lucas-Box meaning (which is not the subject of any striking out application) referred to “a brain disease”. The first plaintiff’s own pleading considered that the words uttered meant and were understood as meaning that the first plaintiff was

“experiencing the first signs of a degenerative brain disease which is impairing her ability to reason and to think”.

7.  The first defendant gave voluntary particulars of a medical certificate dated 27 November 2007 certifying that the first plaintiff experienced symptoms of post-traumatic stress disorder and also suffered from profound anxiety symptoms related to an alleged incident that occurred on 4 February 2002 in Macau.

8.  The judge considered it arguable that the words complained of were capable of being understood as referring to the first plaintiff’s “(alleged or believed) impaired ability … to reason and to think and to engage in social intercourse … regardless of the precise neurological or psychiatric reason for any such impairment” and ordered discovery of the medical records. As there was no suggestion that there was any problem with the first plaintiff’s mental health prior to 4 February 2002, he restricted discovery to records starting from that date.

9.  As regards the second issue, the gravamen of the first defendant’s case was that the charitable activities undertaken by the second plaintiff were done with some ulterior motive, namely, to further the first plaintiff’s personal and political agenda and purposes rather than educational purposes or relief of the needy. The first defendant supplied voluntary particulars, identifying activities co-hosted or organized by the second plaintiff.

10.  The judge ordered discovery of two of the several categories of the documents sought, namely, (1) documents containing details of all donations/financial contributions made by the second plaintiff in the period from incorporation to 28 September 2005 and (2) documents containing details of all sponsorship activities carried out in the same period, both categories being limited to the activities and events pleaded in the voluntary particulars (collectively “the records of donations/contributions and sponsorship”).

Grounds for the intended appeal

11.  Mr Shum who appeared for the plaintiffs submitted that the intended appeal is not against the judge’s exercise of his discretion. Rather, the intended appeal would be on the basis that the judge had no jurisdiction to order discovery because the first defendant had failed to meet the threshold for ordering specific discovery laid down in Berkeley Administration Inc v McClelland [1990] FSR 381 at 382, specifically, in relation to the requirements of relevance and existence.

12.  In relation to the medical records, it was said that there was no evidence that the first plaintiff was suffering from a brain disease. Mr Shum submitted that evidence of post-traumatic stress disorder was of no assistance to the first defendant in the absence of evidence that it was a brain disease rather than a psychiatric condition. Since the first defendant had not adduced any evidence in that regard, it was said that the application for specific discovery in relation to the medical records must fail because the threshold test established by the McClelland case had not been met.

13.  Further, it was submitted that, in any event, the order made was too broad. Mr Shum initially submitted that the first plaintiff’s mental condition after the date of the utterance of the words complained of, namely, 28 September 2005, could be of no relevance. When asked what qualifications to the order were considered appropriate, Mr Shum suggested that discovery of post September 2005 medical records, at a minimum, should be limited to records of complaints about symptoms or records that show that the symptoms occurred before September 2005.

14.  In relation to the records of donations/contributions and sponsorship, Mr Shum’s complaint was that the judge had focused solely on relevance and had made no finding that the first defendant had shown a prima facie case from the list of events set out in the voluntary particulars (which list extracted from the first plaintiff’s website) that there would exist documents that would advance the first defendant’s case. As I understand it, it was said that the judge could not have been satisfied on the evidence adduced that a prima facie case had been made out showing the existence of such documents.

Whether leave should be granted

15.  The Civil Justice Reform introduced a leave requirement for interlocutory appeals. It is common ground that leave should only be granted if the court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard. See section 14AA(4) of the High Court Ordinance.

16.  As a preliminary matter, it is relevant to bear in mind that the leave requirement was introduced largely to address satellite litigation on interlocutory issues (often of only marginal significance to the outcome of the litigation) which almost invariably gives rise to major delay and expense. See the Final Report on Civil Justice Reform (§ 643). For leave to be granted, this court must be satisfied that the appeal has ‘reasonable prospects of success’. Merely showing that the appeal is ‘arguable’ and ‘not fanciful’ would not be sufficient. In my view, ‘reasonable prospects’ requires something more and, in that regard, some assistance may be derived from the test applied when setting aside a default judgment.

17.  I do not consider that the plaintiffs have demonstrated that the intended appeal has reasonable prospects of success for the following reasons.

18.  In relation to the medical records, Mr Shum’s approach was to focus purely on ‘a brain disease’. But one should not lose sight of the fact that the words (to which objection is taken) were not uttered by a doctor but by a layman. In the context, ‘disease’ is but a word to describe an unhealthy condition of mind. As Mr Shum acknowledged, from the pleaded meanings, the issue here is whether the first plaintiff is suffering from a brain disease affecting her ability to reason and to think. While its aetiology may be relevant for certain purposes, such as medical treatment, I fail to see its relevance when what has to be resolved is whether or not, as a factual matter, the first plaintiff’s ability to reason and to think has been impaired. In my view, the plaintiffs’ prospects of making good the jurisdictional point appears to be somewhat remote.

19.  As to the scope of the order relating to medical records, the time frame objection appears to be of recent vintage in that it was not raised at the hearing below but only during the plaintiffs’ leave application to the judge. It was then further refined at the hearing in this court. I would note that the suggested qualification appears to be predicated on certain assumptions as to how medical records would be written as to which there is simply no evidence.

20.  While, arguably, the two categories of documents ordered to be disclosed could conceivably extend to material that might be irrelevant, the scope of specific discovery orders often requires a judgment call to be made, having regard to all the circumstances. The fact that some irrelevant documents may be caught, of itself, does not mean that the order is necessarily wrong, such as would require this court to intervene. In formulating the order, a view has to be taken of the issues and in this regard, the judge in charge of the trial is normally best placed to do so.

21.  In relation to the records of donations/contributions and sponsorship, the jurisdictional objection is directed to the ‘existence’ of the documents sought to be discovered. For my part, I am unable to see how such donations/contributions could have been made or sponsorship undertaken without their being reflected in written records. It was plainly open to the judge to infer from the list of events or activities and other material disclosed in the voluntary particulars that such documents exist.

22.  In any event, even if I were satisfied (which is not the case) that the intended appeal has reasonable prospects of success, in deciding whether or not, as a matter of discretion, leave should be granted, I would not consider it appropriate to grant leave in the present case. In my view, the due administration of justice would not be furthered by allowing interlocutory skirmishes of this kind which would only serve to increase costs and delay the adjudication of the litigation.

23.  For these reasons, I would dismiss the application. In view of this conclusion, the question of a stay falls away. I would also make an order nisi of costs in favour of the first defendant.

Hon Hartmann JA:

24.  I agree.

Hon Le Pichon JA:

25.  There will accordingly be an order in terms of paragraph 23.