HCPI 264/2012
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES ACTION NO 264 OF 2012
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BETWEEN
CHEUNG, JOSEPH WAI LEUK
Plaintiff
and
CHAN KWOK PING (Chinese name 陳國平)
1st Defendant nd Defendant rd Defendant
_________________________
Before : Master Leong in Chambers (open to public)
Date of Hearing : 29 April 2014
Date of Handing Down Decision : 6 June 2014
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D E C I S I O N
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1. There are 3 applications before the court: -
i) summons taken out by the 2nd and 3rd defendants on 25 March 2014 to strike out the plaintiff’s claim against the 2nd and 3rd defendants;
ii) the plaintiff’s application for specific discovery; and
iii) summons taken out by the plaintiff on 17 April 2014.
I. Background
2. This is a personal injury claim. The plaintiff was allegedly a martial art student attending a “Wing Chun” class being taught by the 1st defendant on 5 April 2009 when he was allegedly struck by the 1st defendant in the back of the neck and suffered various personal injuries and damages. The plaintiff alleged that the 1st defendant was the 2nd defendant’s servant, agent and/or employee.
II. The Strike Out Summons
3. The defendants applied to strike out the claim against the 3rd defendant on the basis that the Statement of Claim did not claim any relief against the 3rd defendant.
4. This has been conceded by the plaintiff.
5. However, the parties were disputing the costs of this application.
6. My unless order dated 2 May 2013 stated: -
“Unless the Plaintiff files and serves the Statement of Claim and Statement of Damages within 21 days…..the Plaintiff’s claim be struck out…”
7. The Statement of Claim and Statement of Damages eventually filed and served did not contain the 3rd defendant in the title.
8. Mr Ng, counsel for the defendants, submitted that the defendants’ solicitors had written at least 3 letters to the plaintiff’s solicitors raising this and seeking the plaintiff to discontinue its claim against the 3rd defendant but the plaintiff only conceded this in the course of the plaintiff’s skeleton submission for the current hearing.
9. Mr Wright, counsel for the plaintiff, did not dispute this concession but he submitted that the claim against the 3rd defendant should have already been automatically struck out with the non-compliance of the unless order.
10. If this was the plaintiff’s position, it would be difficult to explain why the plaintiff’s summons dated 17 April 2014 (which was taken out almost 1 month after the defendants’ application to strike out and almost 1 year after the plaintiff’s said non-compliance with the unless order) still contained the 3rd defendant in the title. Mr Ng submitted that this showed that the plaintiff had not yet conceded this point at that time.
11. From the wordings used in the unless order, it might be debatable whether there would be an “automatic” strike out upon non-compliance, or whether the defendants would still need to take out a striking out application upon non-compliance.
12. However, if the former view had been the plaintiff’s position all along, the plaintiff could have informed the defendants at a timely manner, perhaps even at the same time as he filed and served the Statement of Claim. In any case he should certainly confirm this position upon receiving inquiries from the defendants’ solicitors.
13. The fact that the plaintiff failed to confirm this, and the fact that the plaintiff’s later summons still named the 3rd defendant, would instead suggest to the defendants that the plaintiff took the latter view, thus the defendants were perfectly justified to take out the current application. I therefore cannot see any reason why costs should not follow the event.
14. As for the defendants’ application to strike out the claim against the 2nd defendant, Wing Chun Ip Chun Academy, there was no dispute that this as an unincorporated association under the Societies Ordinance, Cap 151. As such, the 2nd defendant, not being a legal entity, could not be sued (London Association for Protection for Trade v Greenlands Ltd [1916] 2 AC 15, 38-39 per Lord Parker).
15. The fact that there was a company which carried a similar name, Wing Chun Ip Chun Academy Limited, which was incorporated on 22 January 2013 (almost 4 years after the current incident) was totally irrelevant to the current case.
16. Mr Wright submitted that the defect was that the 2nd defendant was wrongly named. On the morning of this hearing on 29 April 2014, the plaintiff lodged a document titled “Amended Writ of Summons” which stated on its left upper corner “Amended as in red pursuant to the Order of Master Leong dated 29 April 2014”. This “Amended Writ of Summons” now named the 2nd defendant as (all typed in red) “Yeung Tat Wing Fire, Wong Long Ming, Kwok Hak Man as office bearers and / or representatives for and on behalf of the members of” (in black) “Wing Chun Ip Chun Academy”.
17. The procedure was entirely inappropriate. If the plaintiff was making an application under Order 15 rule 6 claiming that the name of 2nd defendant was a mistake, and was seeking to rectify this by making a further application under Order 15 rule 12 for the court to appoint such individuals as representatives for the proceedings, then the application “must be made by summons which must be served personally on the person against whom it is sought to enforce the…order.” (Order 15 rule 12(4)) and not by handing to the court a purported “Amended Writ of Summons” with names of the purported representatives on the morning of the hearing.
18. No such Summons was taken out by the plaintiff and, further, no evidence was placed before the court that the Summons have been served personally to Yeung Tat Wing Fire, Wong Long Ming and Kwok Hak Man. As such, the court could not entertain any such purported applications.
19. Thus, the matter before me is simple: the 2nd defendant as named on the Writ of Summons is not a legal entity and therefore the plaintiff’s claim against the 2nd defendant is struck out.
III. Specific Discovery application
20. The legal principles for specific discovery is well established: an application under Order 24 rule 7 will not be granted unless (a) there is sufficient evidence that the documents exist which the other party has not disclosed; (b) the document or documents relate to matters in issue in the action; and (c) there is sufficient evidence that the document is in the possession, custody or power of the other party: Berkeley Administration v McClelland [1990] F.S.R. 381; Hong Kong Civil Procedures 2014 , Vol 1, 24/7/1.
21. In the First Affidavit of Patrick Michael Burke (the plaintiff’s solicitor) dated 28 February 2014, made in support in this application, the plaintiff listed the documents requested in a “Schedule of Document” (as exhibit “PMB-2”) (“the Schedule”). The plaintiff has set out:
“In respect of each category of documents, as the rules require – explanation is given as to :-
(1) Proper description of the documents;
(2) The existence of the documents;
(3) Why it is relevant; and
(4) That it is reasonable for the same to be disclosed.”
22. The Schedule contains 5 headings for different categories of documents requested. I shall deal with each heading below.
“The 1st defendant”
23. The plaintiff sought specific discoveries against the 1st defendant for 5 items under this heading.
24. The first item was the 1st defendant’s Hong Kong Identity Card. There was of course no dispute as to its existence. As for its “relevance”, the plaintiff s stated: “identify person” and “age”.
25. Mr Wright submitted that: “the Plaintiff needed a photograph of the 1st Defendant to identify him as his assailant…and it is also necessary for the court to identify him.” Further, Mr Wright told the court that the plaintiff had a DVD recording where the face of the 1st defendant could be seen and a photograph of the 1st defendant would help identify him.
26. The relevant matter subject to controversy between the parties could be summarised as follows: - the plaintiff’s case (from the Statement of Claim) was that he was a student in the 1st defendant’s Wing Chun class on 5 April 2009 during which the 1st defendant “wrongfully assaulted” him. The 1st defendant’s case (from his defence) was that whilst he admitted to be a teaching instructor at the time (and up to now), he denied that the plaintiff was ever a student nor attended the relevant Wing Chun class, nor would the instructor ever be involved in any fighting or hitting in the alleged “foundation” class etc..
27. As such, I cannot see the relevance of the 1st defendant’s Hong Kong Identity Card. The controversy was whether the plaintiff was the 1st defendant’s student and whether he attended the Wing Chun class on that day. There was no controversy about the identity of the 1st defendant: no evidence has been placed before the court that there were other Wing Chun classes at that time and place, nor that there were other instructors besides the 1st defendant, or that the plaintiff could have been mistaken another instructor as his assailant.
28. It goes without saying that the 1st defendant’s age is entirely irrelevant.
29. As for the alleged DVD recordings, this was neither mentioned nor exhibited in Mr Burke’s Affidavit. I would allow Mr Ng’s objection to any submissions made by Mr Wright regarding the content of the DVD recordings.
30. As such, I am not in a position to consider whether the DVD recording is relevant to the controversy at all: no evidence has been placed before me on whether the recording showed the plaintiff attending the 1st defendant’s Wing Chun class on the relevant day, or whether it showed the 1st defendant as the instructor of the plaintiff on that day, or, indeed, whether it showed the actual assault.
31. Further, even if the plaintiff’s evidence was that the 1st defendant was in the DVD recordings, no evidence was presented to me regarding, say, whether the 1st defendant was denying this, thus I am not in a position to decide whether the photograph on the 1st defendant’s ID card is relevant, or indeed, required, to identify him in the alleged DVD of recordings.
32. The second and third items requested for specific discovery were the 1st defendant’s “Certificates to record training/experience in Wing Chun and related martial arts” and the 1st defendant’s “CV”.
33. The plaintiff’s evidence for “existence” for those two items was respectively that “D1 admits is Wing Chun teacher – and should be issued with certificates” and “Is Wing Chun teacher – and common for such to have CV”.
34. No evidence was provided by the plaintiff as to why such “certificate” (whatever that means and whichever establishment should provide such “certifications”) should exist for Wing Chun teachers. Similarly, no evidence was provided by the plaintiff as to why “CVs” should “commonly” exist for Wing Chun teachers. As such, these requirements were no more than speculation and “fishing exercise”.
35. Furthermore, these documents were entirely irrelevant to the matter subject to controversy between the parties. The plaintiff was alleging assault/battery by the 1st defendant, and the defendant denied this and further pleaded that “all students in a Wing Chun class would be taught the foundation of Wing Chun…in the first 3 months period and would not be trained/or be allowed to involve in any form of kung fu fighting in the alleged Third Wing Chun class.”
36. Therefore, in the event that the court accepts at trial that plaintiff has been assaulted/battered as alleged, since the 1st defendant has already pleaded that this was not what should be taught in such a “foundation” class, the only finding available to the court would be that the 1st defendant had wrongfully assaulted the plaintiff which was outside the ambit of normal teaching of Wing Chun. As such, this case would not be different if the 1st defendant had met the plaintiff on a street corner and decided to attack him. As such, the 1st defendant’s training, experience, certificates and CV regarding Wing Chun would be totally irrelevant.
37. The case would have been different if the 1st defendant had pleaded differently: - for example, if he pleaded that some form of this type of “body contact” was the expected part of a normal Wing Chun class taught by a competent instructor and that the plaintiff must have consented to it when signing up to the class. In such a case, I would accept that the 1st defendant’s training and experience as a Wing Chun instructor might be relevant.
38. The fourth and fifth items were for “documents to record work between March and April 2009” and “employment contracts with (1) D2 (2) Wing Chun Ip Chun Academy Limited (3) D3”.
39. For the “existence” of such documents, the plaintiff submits that there “should be employment/wage records” and that employment contract was “legal requirement under Employment Ordinance”.
40. In his defence, the 1st defendant has already denied that he was a “servant, agent and / or employee” of Wing Chun Ip Chun Academy. The plaintiff did not provide the court with any evidence why this should not be the case thus that such documents should exist. This was clearly another “fishing exercise”.
41. Furthermore, the Employment Ordinance Cap 57 under Section 2 defines “contract of employment” as “any agreement, whether in writing or oral, express or implied, whereby one person agrees to employ another and that other agrees to serve his employer as an employee and also a contract of apprenticeship”.
42. If Mr Burke, in his affidavit, was somehow suggesting that it was the legal requirement of the Employment Ordinance that “employment contract” must necessarily be a document in writing thus capable of being the subject for specific discovery, then he was either attempting to mislead the court or at least did not care enough to check with the ordinance first before making such a submission.
43. As such, I would not allow the application for specific discover of all the items requested against the 1st defendant.
“2nd defendant”
44. I have been informed that the plaintiff had already obtained the requested documents so I need not deal with this.
“Wing Chun Class at Shatin Town Hall – March / April 2009”
45. The plaintiff did not specify which party these requests were directed against. This was undesirable and unhelpful to the court.
46. The first item was “documents to record agreement for use of premises for the class” and I understand that the plaintiff had obtained these so I need not deal with it.
47. The next request was for “promotional documents/class program”. Mr Wright submitted that the plaintiff had some, but not all of these.
48. Mr Wright did not identify what the outstanding “promotional documents/class program” were nor which party should have possession, custody or power and the evidence to support such.
49. Mr Burke’s affidavit stated that these were relevant because it would contain information as to “who organized (the) course” and the “duration” (of the course).
50. I am not convinced that such information is relevant to the issue in dispute. The 1st defendant already admitted that he was the Wing Chun instructor and denied that he was the “servant, agent and/or employee” of Wing Chun Ip Chun Academy.
51. For the plaintiff to convince the court that “who organized (the) course” was a relevant issue, the plaintiff needed to provide evidence or otherwise show the court that the organizer of the course must necessarily be the principal or employer of the 1st defendant, and that the 1st defendant’s assault act was within the scope of authority conferred by the principal or within the scope of employment. No such submission or evidence was placed before the court.
52. In fact, as stated in paragraphs 35, 36 and 37 above, given the case as pleaded by the 1st defendant, any assault/battery would have been beyond any scope of authority conferred on or employment of a Wing Chun instructor.
53. Clearly the “duration” of the course was not relevant to the issue in dispute either.
54. The next item requested was “teaching manual/instructions”. As “evidence” to its existence, the plaintiff submitted that “it is common to give students attending such a course”.
55. However, when I asked Mr Wright whether the plaintiff had received one himself, Mr Wright said “no”. I then asked how, in that case, the plaintiff knew that was a common practice to give students such manuals or instructions. Mr Wright said that it was “reasonable inference” but did not elaborate how that “inference” was drawn.
56. I would have thought that a “reasonable inference” from the fact that the plaintiff did not receive such manuals or instructions might either be that it was not that common for students to receive such manuals or that the plaintiff was not a student at all!
57. Further, the plaintiff submitted that the relevance of such documents was to “show what was taught” and “issue as to whether (teaching) should include hitting”. This issue was clearly not controversial: the 1st defendant already admitted that the teaching at that stage should not include hitting.
58. Therefore, I would not allow the plaintiff’s application regarding the above 3 items.
59. The 4th item that the plaintiff requested was the “attendance list”. This was clearly a relevant document since it was disputed whether the plaintiff was a student and whether he attended the class on the relevant day.
60. The plaintiff again did not identify which party he was seeking specific discovery against. But as the claims against all the other defendants besides the 1st defendant have been struck out as above, I would consider the application against the 1st defendant only. Should the plaintiff wish to specific discovery against any third parties, an appropriate summons must be taken out: Hong Kong Civil Procedures 2014 , Vol 1, 24/7A/4.
61. Mr Ng submitted that, by the 2nd affirmation of Ho Kim Hung dated on 25 March 2014, the 1st defendant had already answered that the attendance list did not exist.
62. I am not sure how Ho Kim Hung, as a partner of Messrs Rowdget W Young & Co and, presumably, as the lawyer acting for the 1st defendant, was in any position to make an affidavit that the said document “did not exist”. He could only give evidence that his client has instructed him that the said document did not exist, but not whether the said document actually existed or not. It is trite law that the verification of documents by affidavit is a duty that is personal in an action and cannot be delegated: Lau Chi Wang v Ip Fook Chuen [2003] 1 HKLRD 485, CFI; Hong Kong Civil Procedures 2014 , Vol 1, 24/7/1.
63. I would therefore allow the plaintiff’s application for specific discovery against the 1st defendant for the “attendance list” for the Wing Chun class at Shatin Town Hall in the months of March and April 2009, including 5 April 2009.
Specific Discovery under the heading “Wing Chun class on 5th April 2009”
64. The first item requested was a repeated of the last request which I have dealt with above.
65. The plaintiff’s request for the “teaching list” may also be relevant as the dispute was whether the 1st defendant was the plaintiff’s instructor. A similar denial of its existence was made by Ho Kim Hung in his 2nd affirmation and, applying similar arguments as stated in paragraph 62 above, I would allow the plaintiff’s application for specific discovery against the 1st defendant for the “teaching list” for the Wing Chun class at Shatin Town Hall on 5 April 2009.
66. The next request was for “CCTV recordings of the class”. Mr Burke in his 1st affidavit stated “Are CCTV” as supposed evidence to the existence of such recordings. I do not understand what that means.
67. Mr Wright submitted that the plaintiff “knew” that there was CCTV in the dance studio but there was no evidence from the plaintiff’s as to how the plaintiff came to the knowledge that: -
a) there was CCTV in the dance studio;
b) that the CCTV footage was actually recorded;
c) such recordings were kept for such a period that the recordings of a class taking place some 5 years ago should still be in existence; and
d) how the 1st defendant might come to be in the possession, custody or power of such a CCTV recording given that the CCTV system should logically belong to and managed by the Shatin Town Hall.
68. As such, this was another fishing exercise which I would not allow.
69. Again, should the plaintiff wish to specific discovery against any third parties, an appropriate summons must be taken out: Hong Kong Civil Procedures 2014 , Vol 1, 24/7A/4.
Specific Discovery under the heading “P claim of assault”
70. The next item that the plaintiff requested was “investigation report including statement”. Mr Burke stated “common to investigate claims” as evidence for its existence.
71. The plaintiff again did not identify who or which organization this request was directed against. There was no evidence or argument to support why it is common for whoever or whichever organization to investigate claims.
72. Whilst such a report might be relevant if it existed, the plaintiff failed to provide evidence why such a report or statement should exist, and, in the present context, evidence why the 1st defendant should come to be in the possession, custody or power of such report or statement.
73. The last item that the plaintiff requested was “communication with Police – including statement”. Mr Burke stated “P report matter to Police – so expect is investigation” as evidence for the existence of such documents.
74. Similarly, the plaintiff did not identify who or which organization this request was directed. If this request was directed towards the 1st defendant, the plaintiff again failed to provide evidence as to why there should be communications between the 1st defendant and the police, or that there was in existence any police statement taken from the 1st defendant.
75. In fact, from the letter dated 8 March 2013 from Messrs Rowdget W Young & Co (exhibited as “PMB-5” in Mr Burke’s 1st affidavit), it was stated that a senior police “followed up the case with Sifu Ip Chun” and there was no mention of any communication of the police with the 1st defendant.
76. As such, the request for these two items was another fishing exercise which I would not allow.
77. At this point, I would raise some comments with regard to the plaintiff’s application.
78. On the whole, it appeared that little effort or care was exercised by those advising the plaintiff: the plaintiff’s lawyers failed to provide proper evidence or arguments in his Affidavit to support many of the requests (which appeared to be badly thought through and some should not be raised in the first place), and when the arguments as to the documents’ “existence” and “relevance” were raised, they were written in note form in poor English which required some effort in deciphering by the court (e.g. “admit are registered under Societies Ordinance”, “Are CCTV”, “Issue as to whether should include Hitting”, “P report matter to Police – so expect is investigation”). One request was repetitive (one request was made for “attendance list” in March/April 2009 and a second was made for “attendance list” on 5 April 2009). Further, the plaintiff’s lawyers failed to identify the party/parties that the plaintiff intended to direct the specific discovery against in many of the requests.
79. As such, the plaintiff’s legal advisers were not helpful to the court and, indeed, not making it easy to advance his client’s case.
80. I have considered the issue of costs. Although I have allowed part of the plaintiff’s application, in view of above, I will not give an order to award costs for this application.
IV. Summons taken out by the Plaintiff on 17 April 2014
81. The plaintiff’s Summons sought to seek leave to amend the Writ of Summons and Statement of Claim, for Ip Chun to be added as the 4th defendant, and for the defendants to file and serve their Amended Defence etc.
82. Prior to the current hearing, I have already dealt with the part of this Summons that concerned the potential 4th defendant in a separate order. Here, I will only deal with the remaining part which concerned the 1st , 2nd and 3rd defendants.
83. I note that the Amended Writ of Summons and Statement of Claim annexed to the Summons still contained maintain the action against the 2nd and 3rd defendant (though the plaintiff has afterwards conceded that the action against 3rd defendant should not continue).
84. In view of the pending striking out application of the claim against the 2nd and 3rd defendant, this application was clearly premature at the time. Of course, now that the strike out application is allowed, the amendments drafted are inappropriate.
85. I therefore dismiss paragraphs 1, 3, 4 and 5 of this summons with costs against the plaintiff.
86. In summary, I will give the following Orders:
i) The plaintiff’s claim against the 2nd and 3rd defendants be struck out.
ii) Within 28 days of this Order, the 1st defendant is to make an affidavit stating whether the following documents are, or have any time been, in his possession, custody or power, and not now in his possession, custody or power, when he parted with them and what have become of them: -
a. The “attendance list”, or any document / documents showing the names of attending students for the Wing Chun class at Shatin Town Hall in the months of March and April 2009, including 5 April 2009.
b. The “teaching list” or any document/documents showing the names of Wing Chun teachers or instructors, for the Wing Chun class at Shatin Town Hall on 5 April 2009.
iii) Paragraphs 1, 3, 4 and 5 of the plaintiff’s Summons dated 17 April 2014 be dismissed.
iv) Costs:
a. Costs of and occasioned by the summons taken out by the 2nd and 3rd defendants on 25 March 2014 and costs of the claim against the 2nd and 3rd defendants be to 2nd and 3rd defendants.
b. No order as to costs for the plaintiff’s application for Specific Discovery.
c. Costs of and occasioned by paragraphs 1, 3, 4 and 5 of the plaintiff’s summons dated 17 April 2014 be to the 1st , 2nd and 3rd defendants.
d. Counsels’ certificates be awarded for the hearing on 29 April 2014.
v) If no agreement on costs is reached, the 1st , 2nd and 3rd defendants are to serve and lodge a summary statement of costs within 28 days of this order and the plaintiff is to serve and lodge a list of objection 28 days thereafter for summary assessment of costs.
(Harold Leong)
Mr John Wright, instructed by Burke & Co, for the plaintiff
Mr Lawrence Ng, instructed by Rowdget W Young & Co, for the defendants