LU, CHENG TE RAYMOND v. YEH, SHING HANG KEVIN ARTHUR

HCMP 612/2021

[2021] HKCFI 2686

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 612 OF 2021

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BETWEEN

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DECISION

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1.  This is the substantive hearing of the Originating Summons (“OS”) taken out by the plaintiff (“Mr Lu”) on 30 April 2021 for pre-action discovery of certain CCTV footages of the building (the “Building”) in which he lives.

2.  Mr Lu is a resident in the Building.  The defendant (“Mr Yeh”) is the Chairman of the Management Committee (“MC”) of the Incorporated Owners of the Building (the “IO”).  Mr Yeh is also a resident in the Building.

3.  Both parties act in person.

The materials which Mr Lu is seeking discovery of

4.  In the OS, Mr Lu seeks discovery of CCTV footages covering certain parts of the Building of (i) 3 November 2020 (the “1^st Footage”), (ii) 9 April 2021 between 8 and 9 am (the “2^nd Footage”) and (iii) 9 April 2021 between 11 am and noon (the “3^rd Footage”). In so far as the 1^st Footage is concerned, no time period has been specified.

5.  Mr Lu has filed a number of affirmations in purported support of his applications.  Some are repetitious.  Some of the contents are not readily comprehensible.  According to his affirmation dated 28 May 2021, the footages he seeks discovery of are specifically those of (i) 3 November 2020 between 8 and 9 am (the “4^th Footage”), and the 3^rd Footage.  His subsequent affirmations have revealed similar stance. 

6.  The time period for the 1^st Footage has therefore been clarified.  It is the 4^th Footage which Mr Lu is now seeking instead of the 1^st Footage.  The 2^nd Footage is no longer being pursued.

7.  By his letter of 19 July 2021 to my Clerk, Mr Lu informed the Court that he would no longer seek to pursue any claim against a particular person as originally intended, and that he would therefore no longer be seeking discovery of the 3^rd Footage.

8.  So, this application is now only concerned with the 4^th Footage.

Mr Yeh’s position

9.  Mr Yeh’s stance has been reasonable.  He explains, on top of replying to some of the matters raised by Mr Lu in his affirmations, that the CCTV system of the Building should be handled by the Property Manager of the Building, and that it is not in his personal capacity and authority to be able to provide the requested footages to Mr Lu.

10.  In his affirmation in reply dated 15 June 2021, at §20, Mr Yeh states further that, in any event, confirmation has been obtained from the Property Manager that CCTV footages of the Building are only kept for a period of 7-10 days. As Mr Yeh confirmed during the hearing, when the OS was taken out in April 2021, the retention period for the 4^th Footage had long lapsed, and the 4^th Footage was even at that stage no longer available.

11.  I have no reason not to accept the evidence of Mr Yeh.

The 4^th Footage no longer available

12.  The 4^th Footage is no longer available.  It was not available even at the time when the OS was taken out.  The present application is now entirely academic.  For this reason alone, the application ought to be dismissed.

13.  For the following reasons, I would dismiss the application in any event even if the 4^th Footage were still available.   

The Norwich Pharmacal jurisdiction

14.  The Court has power to order pre-action discovery on the basis of the Court’s Norwich Pharmacal jurisdiction, evolved from the case of Norwich Pharmacal Company v Customs & Excise Commissioners [1974] AC 133.

15.  In A Co v B Co [2002] 3 HKLRD 111, Ma J (as the ex-Chief Justice then was), explains at §13 that:

“ … it is essential for the court to bear the following in mind before a Norwich Pharmacal order is made:

(1) There must be cogent and compelling evidence to demonstrate that serious tortious or wrongful activities have taken place. And where fraud or similar serious allegations are made, the degree of proof must correspondingly be high … All the more so when the alleged wrongdoer is not and will not likely be before the court.

(2) It must also be clearly demonstrated that the order will or will very likely reap substantial and worthwhile benefits for the plaintiff ...

(3)   The discovery sought must not be unduly wide ...”

The alleged purpose of seeking the 4^th Footage

16.  I have read the several affirmations which Mr Lu has filed.  In at least two of his affirmations, he attached to them a draft Statement of Claim of his intended actions.  I refer to the “ ‘A’ Draft Statement of Claim” attached to his affirmation of 18 June 2021:

(a) There are two named defendants to that draft. Mr Yeh is “Defendant 1”. The other is “Driver (Chauffeur) of motor vehicle registration number X[1], named to be disclosed by Defendant 1”;

(b) Paragraphs 143, 154 and 155 of the same read, inter alia, as follows:

“ 143. On 3 November 2020, while [Mr Lu] was working on documents and a … cheque at the [Building] semi-circular ground floor lift lobby common area desk, noticed someone looking over his shoulder at the document at the [Building] semi-circular lift lobby desk after he had sent a photograph of … [a] circular displayed at the ground floor lobby, dated 8 October 2020 to … at 8:32 am (HKT). [Mr Lu] then took a series of 5 photographs with his iPhone XR … Two of the five iPhone photographs depict the events of a vehicle being driven forward (towards [Mr Lu]) and braking as [Mr Lu] was trying to take a photograph (of the number plate) of a vehicle (a van), and the vehicle (motor vehicle Registration number X) then reversing in the direction towards [Mr Lu]. The motor vehicle clearly was not designed and manufactured to be driven with one or more of it doors opened as the opened doors would interfere with the proper functioning of the moving vehicle registration number X.

…

154. This draft statement of claim, contains claim for damages for the amount of HK$3,100,000.00.

155. [Mr Lu] claims that as a consequence of the 3 November 2020 8:32 am–8:34 am motor vehicle related incident, he has sustained psychological scaring / injury and anxiety, and claims damages for these injuries … including vicarious liability …”

17.  I have considered Mr Lu’s description of the events that allegedly took place on 3 November 2020.  He alleges no contact.  He provides no particulars on speed, distance or driving manner. On the facts before me, I am not satisfied that there is cogent and compelling evidence to demonstrate that serious tortious or wrongful activities have taken place.

18.  Nor has any proper basis for naming Mr Yeh as a defendant of that intended action been provided. 

19.  Mr Lu has got the registration number of the vehicle concerned. On the facts, I am not satisfied it has been clearly demonstrated that the order will or will very likely reap substantial and worthwhile benefits for the plaintiff. In particular, I fail to see how Mr Yeh could provide Mr Lu with the identity of the driver of vehicle registration number X.

Section 41 of the High Court Ordinance

20.  Mr Lu relies on Section 41 of the High Court Ordinance, Cap 4.

21.  That the court has jurisdiction under that section to order pre-action discovery is not in dispute.

22.  But as explained in Hong Kong Civil Procedure 2021 Volume 2 at E1/41/1, in respect of an application under section 41 of the High Court Ordinance:

“ There must be a reasonable basis for an intended claim in subsequent proceedings and ill-founded and speculative applications based merely on hope will not suffice. An applicant is expected to have some understanding and justification for the case he has against a potential defendant and this needs to be sufficiently particularised to avoid any unwarranted or fishing applications …”

23.  On the facts of the present case as I have outlined above, I am not satisfied that there is any reasonable basis for Mr Lu’s intended claim. 

Disposition

24.  I dismiss P’s application.

Costs

25.  Mr Yeh has indicated that should the application be dismissed, he would only seek costs in the sum of HK$200 to cover transportation. That is a most reasonable request. I order that Mr Lu shall pay Mr Yeh costs in that sum of HK$200 within 28 days from the date hereof.

Postscript

26.  Subsequent to the hearing, Mr Lu wrote to my clerk and sought to amend certain documents.  There has to be finality to a hearing. No basis has been established for the filing of post-hearing documents. I ignore the same.