AGACER JAMES C v. TANG SAI KEUNG AND ANOTHER

HCPI 916/2014
[2018] HKCFI 69

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 916 OF 2014

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D E C I S I O N

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1.  This is the plaintiff’s application for non-party discovery against the Director for Immigration for documents to show the 2^nd defendant’s :-

(a) Chinese name;

(b) Reported residential addresses;

(c) Reported telephone number(s); and

(d) Reported employment, with full name and address of the employer.

BACKGROUND

2.  This is a personal injury case and the plaintiff claimed that he was assaulted by the two defendants.

3.  According to Mr. Burke, the plaintiff’s solicitor, the plaintiff has served the writ to the 2^nd defendant’s last known address by registered post and the writ has not been returned.

4.  There was no response from the 2^nd defendant and the plaintiff heard from some source that the 2^nd defendant had moved out of that address.

5.  It was, of course, open for the plaintiff to apply for default judgment there and then.  A successful application would be the quick, simple and cost-effective solution.

6.  Instead, Mr. Burke embarked upon a long and costly journey to search for the address of the 2^nd defendant, with enquiries made to the Police, Water Supplies Department, CLP Power Hong Kong Limited, Voter Registration, Inland Revenue Department and even going through photographs of registration numbers of vehicles in the car park of the premises, presumably intending to pursue the inquiries to the Transport Department.

7.  Mr. Burke did not explain the purpose of this arduous exercise in his affidavit in support of the application (the Fourth Affidavit of Patrick Michael Burke dated 9 August 2017).

8.  However, in his letter to the court dated 12 December 2017 (which might serve as a skeleton submission), Mr. Burke emphasised that this application was for “the “Administration of Justice” i.e. sending documents direct to 2^nd defendant at his address, instead of doing it by substituted service in a newspaper, which is the alternative.”

9.  Mr. Burke eventually obtained the full name and Hong Kong Identity Card Number of the 2^nd defendant and decided to pursue the current application against the Immigration Department.

10.  The Immigration Department has documents containing information of the 2^nd defendant’s Chinese name, reported residential address and reported telephone number.  The department has taken the trouble to write to the 2^nd defendant to seek his consent to release such personal data to the plaintiff.  The 2^nd defendant refused to grant his consent. (see the Affirmation of Yeung Hong Lu Teddy dated 3 October 2017).

LEGAL PRINCIPLES

11.  In his affidavit, Mr. Burke mentioned Section 60B Personal Data (Privacy) Ordinance and said that the exemption under this section applied.

12.  However, it is trite that this exemption acts “as a shield, not a sword”.

13.  To put it simply, if the Immigration Department has released the personal data of someone who then took action against the department for breach of the personal data principle, the department might use these exemptions as a defence or “a shield”.  However, the exemptions cannot be used as a “sword” for a party seeking personal data to request the department to comply.

14.  Mr. Burke agreed with this during the hearing.

15.  Therefore, Section 60B Personal Data (Privacy) Ordinance is irrelevant to the current application.

16.  Given that the 2^nd defendant did not give any consent, I am of the view that the Immigration Department was entirely correct to let the matter be decided by the court.

17.  The legal principles for non-party discovery is clear.  It has been held in Chan Yin Wah Wallace v New World First Ferry Services Ltd HCPI 820/2013, that:-

“…non-party discovery is a relief to be granted by way of the discretionary exercise of the power vested in the court by section 42 of the High Court Ordinance and Order 24 rule 7A(2) of the Rules of the High Court. There is no existing “right” or “entitlement” to discovery vested in a plaintiff…notwithstanding the general duty to facilitate the administration of justice…

…the exercise of discretion by the court involves the conventional considerations of “existence, relevance and necessity” under the Order 24 rule 7A and rule 8(2) and a balancing exercise of the need for disclosure in the interest of the administration of justice and countervailing factors such as “protection of personal data” under the Personal Data (Privacy) Ordinance and “the duty of confidentiality” under common law, and other countervailing factors.”

ISSUES IN CONSIDERATION

Relevance

18.  Mr. Burke stated that the purpose was for “sending documents direct to 2^nd defendant at his address”.  Thus, any attempt to discover documents with information of the 2^nd defendant’s Chinese name, telephone number, employment, employer’s name and address (Schedule A, paragraph (1) (a), (c) and (d) of the Summons) would clearly be irrelevant.

19.  During the hearing, Mr. Burke agreed to withdraw these requests, leaving only the application for discovery of documents showing the 2^nd defendant’s “reported residential address” for the court to consider.

Existence

20.  There is no argument in this: the Immigration Department already confirmed that it has documents showing the 2^nd defendant’s “reported residential address” (see the Affirmation of Yeung Hong Lu Teddy).

Necessity

21.  It would appear that the only argument that Mr. Burke raised regarding “necessity” was:-

“The plaintiff does not know the address of the 2^nd defendant – and it must be relevant and necessary to have that – in order to send him court documents” (see letter dated 12 December 2017)

22.  But earlier in the letter, he already stated that the purpose was for the “Administration of Justice” i.e. sending documents direct to 2^nd defendant at his address, instead of doing it by substituted service in a newspaper, which is the alternative.”

23.  One might question that if Mr. Burke had already conceded that there was an “alternative”, why would this application be “necessary”?

24.  Even by Mr. Burke’s own submission, the application has clearly failed the “necessity” test.  But I will consider Mr. Burke’s argument for “administration of justice” further.

BALANCING EXERCISE BETWEEN JUSTICE AND PRIVACY

25.  Of course, for consideration for “administration of justice”, I have to consider the alleged facts of claim, its merit and the purpose of the Summons.

26.  The parties all agreed that the present case was distinguishable from the Chan case above: in the Chan case, discovery was sought on the investigation report and other documents concerning an accident which was the central subject of that claim.  Here, the plaintiff was seeking discovery of the address of a defendant. The central subject of this claim was an alleged assault. The information sought was not made available in the course of investigation of the alleged assault conducted by the department as an investigating authority.  Instead, the Immigration Department obtained such personal data whilst carrying out its statutory duties in immigration control and other related duties.

27.  I have discussed the merit of the current claim in more details in a previous decision.  But, in essence, there was a police investigation into the alleged assault but no prosecution resulted.  Thus, the merit of this claim, on face of it, is more questionable and the considerations are very different from the Chan case.

28.  Mr. Burke’s argument regarding “administration of justice” must necessarily implied that substituted service would somehow not be an “administration of justice”.  He did not elaborate further on his argument.  However, Mr. Burke must be aware that any application for substituted service would be made under a proper and long-established legal procedure, as would be an application for default judgment. Both must therefore be “just” and proper legal procedures.

29.  Rather than having anything to do with “administration of justice”, the purpose behind Mr. Burke’s (rather costly and arduous) exercise to search for the 2^nd defendant’s address was to allow “sending documents direct to 2^nd defendant at his address”.  As such, it was really for benefit and “convenience” of the 2^nd defendant so that he could receive the documents at his address instead of by way of substituted service.

30.  Whilst I might expect that litigating parties treat each other with a degree of courtesy, I could not readily see the reason for Mr. Burke’s overwhelming concern for the benefit and convenience of the opposing party, especially when the plaintiff and the Director of Legal Aid might likely have to incur substantial costs for it.

31.  One further consideration is the “floodgate” concern: Ms. Luk, counsel for the non-party, rightly pointed out that if this application was allowed, it might open a regular channel for any potential plaintiffs to seek access to the personal data of intended defendants from Immigration Department which was not an investigating agency and has no involvement in the matter in dispute.  I would say that this might open the floodgate for inquiries into not only governmental, but non-governmental institutions or bodies that might hold any personal data for unrelated purposes: schools, universities, banks, employers, hospitals, medical clinics, and even law firms etc. There was simply no justification for such.

COSTS

32.  As for costs, there is no question that the non-party is entitled to the costs and occasioned by the application with certificate to counsel.

33.  As stated above, an application for default judgment may be considered a clear first option in this case.  Further, not knowing the service address of a party is not an unusual situation that experienced solicitors have to deal with.  The expected way forward is to apply for substituted service.  This is an “everyday” application before the court.

34.  As the application failed the “necessity” test, the non-party costs should not be the costs of the main action.  As such, I would order that the plaintiff should bear the costs in any event.

ORDER

35.  I would make the following order:

(a) The plaintiff’s application be dismissed.

(b) Costs of and occasioned by the application be paid by the plaintiff to the non-party in any event with certificate to counsel to be taxed if not agreed.

(c) Plaintiff’s own costs be taxed in accordance with Legal Aid Regulation.

36.  In the time of the CJR, I would expect that, before embarking on such arduous and “unusual” venture (all the investigations in search of the 2^nd defendant’s service address including the current application) in a “not-so-unusual” situation, a legal practitioner should have performed a careful “balancing exercise” between risks, costs and “potential” benefit.

37.  I wonder if this has been done and whether the plaintiff and the Director of Legal Aid were properly advised of such.

38.  Further, given that Mr. Burke readily withdrew 3 out of 4 of his requests during the hearing (see paragraphs 18 and 19 above), one might question whether the Summons was well thought-out at all.

39.  As such, I think this may be one of those cases that the Director of Legal Aid might consider taking a closer supervision in order to ensure that the public fund was being put into proper use.  I would therefore direct that a copy of this decision be released to the Director of Legal Aid for his consideration.