Cheung Kin Chi v. Gammon Construction Ltd.

DCEC52/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 52 OF 2002

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R U L I N G

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1. This is a case of Employees' Compensation where the applicant suffered a back injury as a result of an accident that occurred on 28 November 2000. Liability is in dispute.

2. The background of this case is the applicant, on the alleged date of accident, did not report the accident but showed up the next day on 29 November 2000 and reported his injury by submitting a sick leave certificate to the respondent on 30 November 2000.

3. In early December 2000, the respondent's safety officer, Mr Tau Siu-cheung, carried out an investigation in respect of the applicant's injury. Mr Tau, in the course of his investigation, interviewed the applicant's co-workers and had taken brief statements from them. This is evidenced by a letter to the Labour Department. It is also admitted by Mr Tau that these statements had been taken by him. The applicant now applies for specific discovery in respect of these brief statements.

4. It is not disputed that these statements of the co-workers are relevant. The respondent, however, oppose the application on the basis that the witness statements come under the umbrella of "legal professional privilege".

5. In support of the opposition, Mr Tau of the respondent had filed an affirmation stating:

"I conducted interviews with the applicant and his co-workers and brief statements were taken from them. I confirm all documents and information gathered from the interview and investigation were solely and dominantly prepared with a view to obtaining legal advice in respect of the contemplated litigation. At the material time the respondent had a legal department advising on the legal issues arising from the operation of the respondent's business."

The Law

6. The two classes of documents that are protected on the ground of legal professional privilege, as set out in paragraph 24/5/7 of the Hong Kong Civil Procedure 2002, Volume 1 are:

(a) those that are privileged whether or not litigation was contemplated or pending; and

(b) those that are only privileged if litigation was contemplated or pending when they are made or came into existence.

7. In Waugh v British Railway Board [1979] 2 All E.R. 1169, which was followed in Tam Yuk-kwan v Chu Cheuk Tao [1989] 1 HKC 231, the principles for "dominant purpose tests" are summarised:

(1) the document was privileged for production if, but only if at least the dominant, even if not the sole purpose for which it was prepared was that of submitting it to a legal advisor for advice in connection with reasonably anticipated litigation arising out of the accident;

(2) the rule should not be limited to internal reports;

(3) the party claiming privilege had the onus of making out that claim.

8. Mr Lau, for the applicant, submits that despite the allegation as set out in Mr Tau's affirmation, the court should look at the "genuine purpose" for which the said statements were prepared. Mr Lau seeks reliance on Hong Kong Civil Practice 24/5/15 at page 407:

"It must always be remembered that the time at which the dominant purpose of the author of the document ... is to be judged, is the time when the document is brought into being. Such judgment ought not be coloured by the subsequent use of the document or the subsequent intention of the author..."

9. I now turn to a letter from the respondent to the Labour Department. The letter was dated 18 December 2000 by the HSE Department. I am informed by Mr Lau that "HSE" refers to the Health, Safety and Environment. On the face of this document, it was sent out by the Health, Safety and Environment Department of the respondent to the Employees' Compensation Division of the Labour Department. In the letter the respondent states that they had considerable doubts as to the authenticity of this back 'injury', they interviewed Mr Cheung Kin-chi (the applicant) Tam Bing-kuen (site foreman), Li Lo-chai (driller), Tsang Kwok-chuen (drilling labourer). The respondent referred to the statements, and concluded that they have doubts as to the authenticity of the 'back injury' and was of the view that the alleged injury did not occur during the course of work between 27 and 28 November 2000. They would not report the alleged accident unless and until sufficient evidence came to service.

10. Mr Lau, for the applicant, submits that the interviewing of the co-workers that was taken very shortly after the accident, must have contained a number of purposes:

(1) to find out the circumstances of the accident;

(2) to determine the "authenticity" of the injury;

(3) to determine whether the injury occurred during the course of work; and

(4) to determine whether the respondent needed to file a notice of accident (i.e. Form 2).

11. Mr Lui, for the respondent, on the other hand relies strongly on the affirmation of Mr Tau Siu-cheung, who on oath states that the sole and dominant purpose for the preparation of the brief statements was to obtain legal advice.

12. Mr Lui further submits that the respondent has arranged for Tam Bing-kuen and Li Lo-chai, who were the foreman and co-workers of the applicant, to file witness statements in these proceedings. There would therefore be no prejudice to the applicant.

13. The court has a duty to look into the circumstances surrounding the making of the document where an application for specific discovery is sought. In considering whether there is a legal privilege in respect of the document, apart from taking into account the affirmations, the court will also have to take into account other evidence surrounding the making of the documents in issue.

14. In this case Mr Tau was instructed by one Mr Maxi Koo of the respondent to carry out an investigation. There is no evidence as to the status or position of Maxi Koo. I assume he was a senior officer of the respondent who was in a position to give instructions to Mr Tau. There is no evidence that all investigations will be referred to the legal department. When taking statements from the co-workers, there would be two stages. Before taking statements from the co-workers, it is difficult to see how the respondent or Mr Tau could come to a view as to whether the matter should be referred to the Legal Department of the respondent. It is only when after taking the brief statement from the co-worker and from the applicant, then Mr Tau and his team would be in a position to come to a view as to whether there is an issue on liability and whether this matter should be referred to their Legal Department.

15. From Mr Tau's affirmation, although he states that the dominant and sole purpose for taking the statements was with a view to obtain legal advice from the respondent's Legal Department, he does not set out whether the information was ultimately transferred to the Legal Department of the respondent, or alternatively, whether the case was taken up by the insurers and referred to the insurers' own legal advisors or whether the Legal Department of the respondent was involved at all.

16. I am of the view that in most cases of industrial accident, witness statements would be taken from co-workers by the employer, but not all cases of industrial accident would be referred to the legal section of the employers. In the event that the witnesses come up to support the injured worker's case that there had been an industrial accident in the course of employment, then it is likely that the employer may simply fill in a Form 2 without referring the matter to their legal section but refer the matter to the insurers.

17. In this case, from the letter to the Labour Department, it is shown that at least one of the purposes of the witness statements was to enable the respondent to come to a view as to whether the Form 2 should be filled in, and whether the circumstances of the evidence would support the applicant's case that he was injured in the course of employment. There is no evidence that the Health, Safety and Environmental group of the respondent would invariably refer their investigation to the legal department, and there is no evidence that in this occasion they had sought advice from their legal sector before sending out the letter of 18 December 2000.

18. I am of the view that there is no evidence that these brief statements were subject to lawyer/client communication. Further, I am of the view that at the time when these witness statements were sought, they were obtained for a multiple purpose, albeit "in contemplation of litigation" may well be one of the purposes.

19. Bearing in mind that it is the onus of the respondent to prove that the sole or the dominant purpose for the taking of the brief statements was for obtaining legal advice from their Legal Department, having considered the materials before me, I am not satisfied that this was the sole or dominant purpose.

20. It follows that I would order the disclosure of the brief witness statements taken by Mr Tau of Mr Cheung Kin-chi, Mr Tam Bing-kuen, Mr Li Lo-chai and Mr Tsang Kwok-chuen.

21. I am informed that Mr Tsang cannot be located, which makes his statement given to the respondent germane to the issues that would be before the court.

22. I would take this opportunity to thank Mr Lau and Mr Lui for their helpful submissions which were of much assistance.

23. Costs of this application be to the applicant in any event.

(Discussion re costs)

24. I make a further order that costs in relation to the discovery application, dated 21 June 2002, be to the applicant in any event and the applicant's own costs be taxed in accordance with Legal Aid regulations.