ZHU QIYING v. 妹記蔬菜批發

DCEC 664/2017

[2018] HKDC 454

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 664 OF 2017

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DECISION

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1.  By a summons filed on 6 April 2018, the applicant applies for an order requiring China Mobile Hong Kong Company Limited (“CM”) to disclose documents showing all the personal information (including but not limited to the postal address) of the registered user of 2 specified mobile numbers (“the 1^st mobile number” and “the 2^nd mobile number”). The summons is supported by an affirmation made by the applicant and filed together with the summons.

2.  The summons and the supporting affirmation have been duly served on CM.

Background

3.  I would first set out the background facts.

4.  In this case, the applicant is seeking employee’s compensation from the respondent in respect of an accident occurred on 9 May 2015.  The applicant’s case is that on 4 May 2015, she started to work for the respondent.  On 9 May 2015, personal injury by accident arising out of and in the course of employment was caused to her.  The applicant is unable to proceed further in these proceedings, for the respondent is merely a trading name, and the identity of the person (“the employer”) using this trading name is not yet known.  The purpose of this application is to reveal the identity of the employer.

5.  According to the applicant, she found the job on 4 May 2015 by calling the 1^st mobile number, which was a number written on a recruitment notice posted on the shopfront of the main shop and on the shopfront of the branch shop of the respondent.  The female answering the applicant’s call holding herself out as “老闆娘” of the respondent.  The voice of that female was same as the voice of the female boss whom the applicant met during her employment.  On 9 May 2015, after the accident, the applicant found the 2^nd mobile number on the recruitment notice outside the main shop and the branch shop of the respondent.

6.  The applicant’s solicitors have made some enquiries.  It is now known that CM is the service provider in relation to the 1^st mobile number and the 2^nd mobile number.  However, CM would only be able to disclose the information of the registered user(s) of these 2 numbers to the applicant if there is permission from the customer(s) or if there is a court order directing them to do so.

Analysis

7.  In the summons, it is stated that the application is made under ss 21(4) and 21(5) and the Employees Compensation Assistance Ordinance (“ECAO”), Order 24 rule 7 of the Rules of the District Court (“RDC”) and inherent jurisdiction of this court.  With respect, ECAO s 21 cannot be the correct statutory provision for the purpose of this application.  ECAO s 21 concerns matters relating to an application for payment from the Employees Compensation Assistance Fund Board (“the Board”).  The applicant now is aiming at finding out the identity of the employer and to pursue against the employer.  Hence, ECAO s 21 is not relevant.  Further, RDC Order 24 rule 7 also cannot be the correct statutory provision, for that rule concerns discovery against a party in the proceedings.  Obviously, CM is not a party in these proceedings.  In respect of inherent jurisdiction, this court is created by statutes and has limited jurisdiction.  No authority has been cited to me showing that this court has inherent jurisdiction in making a discovery order against a non-party.  In these circumstances, it would be better for me to leave the question of inherent jurisdiction open. 

8.  However, the court is not confined by the sections and the rules set out by the applicant in the summons.  Providing that there are some other statutory provisions conferring the relevant jurisdiction on this court, I may make the order sought by the applicant in the summons or a similar order.  See Premier Fashion Wears Ltd and Broadway Sportwear Ltd v Chow Cheuk Man [1994] 1 HKLR 377 (CA).  In my view, the statutory provisions set out below have conferred the relevant jurisdiction on this court:-

(a) District Court Ordinance, s.47B(1)

“A party to proceedings in an action, in which a claim is made, may apply to the Court in accordance with rules of court for an order for discovery of documents against a person who is not a party to the proceedings and who is likely to have or to have had in his possession, custody or power documents relevant to an issue arising out of the claim.”

(b) RDC, Order 24 rule 7A(2)

“An application after the commencement of proceedings for an order under section 47B(1) of the Ordinance for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons, which must be served on that person personally and on every party to the proceedings other than the applicant.”

(c) RDC, Order 24 rule 8

“No order for the disclosure of documents shall be made under section 47A or 47B of the Ordinance, unless the Court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.” (Emphasis added)

9.   With these provisions in mind, I am of the view that the applicant is entitled to have a discovery order against CM, but the scope of the discovery should be narrower than the one set out in the summons.

(a) It is necessary for the applicant to know the identity of the employer. Obviously, the applicant may only pursue her claim for employee’s compensation against the employer after knowing this.

(b) On the basis of the evidence produced by the applicant, I am satisfied that there is connection between the 2 mobile numbers and the employer. Accordingly, allowing the applicant to have a discovery order against CM in respect of the documents concerning these 2 mobile numbers may enable the applicant to find out the true identity of the respondent in these proceedings, and thereafter the applicant may pursue her claim against the right person.

(c) However, the scope of the discovery order should be limited to the name(s) and the address(s) of the registered user(s) of these 2 mobile numbers, and not any other information.  In my view, knowing the name(s) and the address(es) of the registered user(s) of these 2 mobile numbers would be sufficient for the purpose of bringing proceedings against the employer.  It would not be necessary for the applicant to have any other information from CM at this point of time.

(d) In my judgment, a discovery order against CM with the limited scope set out above would be necessary for disposing fairly of these proceedings.

10.   It is understandable that CM can only provide the information to the applicant under a court order in the absence of any permission from their own customer(s).  This application is not opposed by CM.  In my view, costs of this application (including costs incurred by CM in compliance of the court order) should be paid by the applicant to CM, to be taxed if not agreed.

Disposition

11.   For the reasons above, I make the following order:-

(a) CM do disclose the following documents to the applicant within 28 days, namely, documents showing the name(s) and the address(es) of the registered user(s) of the 1^st mobile number and the 2^nd mobile number since 1 April 2015 until now;

(b) information other than the name(s) and the address(es) of the registered user(s) of the 1^st mobile number and the 2^nd mobile number on the aforesaid documents be redacted;

(c) there be liberty to apply;

(d) costs of and occasioned by this application (including costs incurred by CM in compliance of this order) be paid by the applicant to CM, to be taxed if not agreed; and

(e) the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

12.   I thank Ms Wong for the assistance rendered to the court.