HO YUEN KI WINNIE AND ANOTHER v. HO HUNG SUN STANLEY AND ANOTHER

HCA 391/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 391 OF 2006

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J U D G M E N T

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1.  This is an application for specific discovery.  Originally, there was also an application for production of documents.  But at the hearing, Mr Paul Shieh SC (with him Ms Eva Sit), appearing for the 1^st defendant, accepted that the production application was rather premature and therefore asked the Court not to deal with it for the time being.

2.  The present action is a libel action.  Amongst other things, the 1^st plaintiff complains that the 1^st defendant has defamed her by falsely alleging that she was suffering from senile dementia/Alzheimer’s disease (老人痴呆症), and that she was clearly lying when she said she intended to donate $6 billion to charity – any money that she would donate would in fact go back to her via the donee, the 2^nd plaintiff, belonging to her.

3.  The 1^st defendant has in his pleading pleaded the so-called ‘Lucas-Box’ meanings of the words complained of: See Lucas-Box v Newsgroup Newspapers Ltd [1986] 1 WLR 147.  In relation to the first matter, the 1^st defendant pleads that there were reasonable grounds to suspect that the 1^st plaintiff was experiencing the first signs of a brain disease, which was impairing her ability to reason and to think and to engage in social intercourse.  In relation to donating to charity, the Lucas-Box meaning pleaded is that ‘any donations made to [the 2^nd plaintiff] would be used by [the 2^nd plaintiff] towards furthering [the 1^st plaintiff’s] personal and political agenda and purposes’. 

4.  The 1^st defendant therefore seeks specific discovery of documents that are said to be relevant to the pleaded issues, particularly the Lucas-Box meanings pleaded by him.  It is fair to say that since it was first sought by correspondence, the scope of the discovery sought has been narrowed down significantly.

5.  It is common ground that an applicant for specific discovery has to establish a prima facie case that:

(1)  there is sufficient evidence that the documents exist which the other party has not disclosed;

(2)  the document or documents relate to a matter in issue in the action; and

(3)  there is sufficient evidence that the document is in the possession, custody or power of the other party.

Berkeley Administration Inc v McCelland [1990] FSR 381, 382.  The Court retains a discretion in ordering discovery.  The Court may refuse discovery at a particular stage of the proceedings or at all, if it is satisfied that discovery is not necessary, or not necessary at that stage; the Court shall refuse discovery if it takes the view that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs.  O 24, r 8, The Rules of the High Court (Cap 4A).

6.  In relation to the first matter, namely the allegation or belief that the 1^st plaintiff has been suffering from a brain disease that impairs her ability to reason and to think, and to engage in social intercourse, the discovery sought, as revised by leading counsel during the hearing, now relates to two classes of documents:

(1)  the 1^st plaintiff’s medical records that diagnose or mention any brain disease or disorder that she may have had which has resulted in impairment to her ability to reason and to think and to engage in social intercourse;

(2)  documents containing any medical complaints by the 1^st plaintiff of any impairment to her ability to reason and to think and to engage in social intercourse.

7.  These two classes of documents have now replaced the original item (i) in the schedule to the discovery summons.  Item (ii) in the schedule has been dropped.

8.  The actual words used by the 1^st defendant specified senile dementia/Alzheimer’s disease (老人痴呆症) as the condition or disease that the 1^st plaintiff was, allegedly or believed to be, suffering from.  The Lucas-Box meaning pleaded by the 1^st defendant, however, refers to ‘a brain disease’.  The revised classes of documents sought talk about ‘any brain disease or disorder’.

9.  Mr Erik Shum (Ms Josephine Tjia with him) submits that this is an unacceptable reinterpretation of the words actually used by the 1^st defendant, the subject matter of the 1^st plaintiff’s complaint.  The condition actually mentioned by the 1^st defendant was a very specific one.  He did not refer to ‘any brain disease’.

10.  However, I note that thus far, the 1^st plaintiff has not sought to strike out the Lucas-Box meaning pleaded by the 1^st defendant.

11.  In my view, it is arguable that one way of reading the words complained of is that the 1^st defendant was really focusing on the (alleged or believed) impaired ability of the 1^st plaintiff to reason and to think and to engage in social intercourse – quite regardless of the true nature of the condition that gave rise to the impairment in the first place.

12.  I therefore cannot conclude that the revised classes of documents are not relevant to the issues between the parties on that ground.

13.  Rather, based on the Lucas-Box meaning pleaded, I take the view that the two revised classes of documents are relevant.

14.  As regards the existence of the documents sought, I bear in mind the matters relied on by the 1^st defendant, namely the medical materials suggesting that at least at one stage, the 1^st defendant has experienced symptoms of post-traumatic stress disorder.  There is also evidence that in an unrelated piece of litigation in which the 1^st defendant was involved as a trustee defendant, she was in bad health and had to give evidence by video link from her home.  As was observed by the trial judge, Tang JA (as he then was), sitting as an additional judge of the Court of First Instance, she was obviously not following the proceedings very well and had obvious difficulty in following questions.

15.  Given the personal background of the 1^st plaintiff, it is reasonable to believe that she must have received medical treatments in relation to her condition and thus the existence of documents falling within the two revised classes of documents sought.

16.  Mr Shum has complained that the documents sought are highly personal documents and the Court should be slow to order their discovery.  I follow Mr Shum’s point but this cannot, in itself, be a complete answer to the application for discovery, although I have borne firmly in mind this factor.  What is more relevant here is that neither the 1^st plaintiff nor her counsel has suggested that no such medical records or documents really exist.  They simply rely on the burden that the 1^st defendant bears to establish their existence.

17.  As regards possession, custody or power, no real issue has been taken given the nature of the documents sought.

18.  There was some debate during the hearing as to whether ‘a brain disease’pleaded by the 1^st defendant by way of a Lucas-Box meaning can include something like post-traumatic stress disorder.  After all, what the 1^st defendant actually referred to was not a psychiatric disorder, but senile dementia/Alzheimer’s disease.  This debate is relevant because it does not follow from the existence of documents relevant to post-traumatic stress disorder that medical records or documents relating to senile dementia/Alzheimer’s disease also exist.

19.  There is no real point in debating whether ‘a brain disease’ is wide enough to cover a psychiatric condition such as post-traumatic stress disorder.  Mr Shieh has in his submission argued that the answer is in the affirmative, whilst Mr Shum has suggested otherwise.  In my view, what is more crucial here is whether the words actually said by the 1^st defendant is arguably capable of referring to or covering a psychiatric condition that would impair a person’s ability to think and reason and to engage in social intercourse.  In my view, the answer is (arguably) yes.  Put another way, it is arguable that the thrust of the words uttered by the 1^st defendant went to the (alleged or believed) impaired ability of the 1^st plaintiff to think and reason and to engage in social intercourse normally, regardless of the precise neurological or psychiatric reason for any such impairment.

20.  I take the view that the 1^st defendant has established a prima facie case for discovery.  In considering how my discretion in the matter should be exercised, I have, as I said, borne in mind the personal nature of the records and documents sought, whether the documents sought are too wide in scope or imprecisely defined, the issues between the parties and the relative importance or potential importance of the documents to a fair resolution of the issues, the stage of proceedings that this litigation has reached, the time and costs that have been expended thus far generally and on this application, amongst all other relevant circumstances and considerations.

21.  At the end of the day, I have come to the conclusion that the revised classes of documents sought should be ordered subject to a timeframe.  The post-traumatic stress disorder related to an incident that allegedly took place on 4 February 2002.  There is no suggestion that prior to that, there was any problem with the 1^st plaintiff’s mental health or that there exists any medical records or documents relating relevantly to her mental condition prior to 2002.

22.  The discovery ordered is therefore restricted to the period starting from 4 February 2002 (up to the present).

23.  As regards the second matter, namely, the 1^st plaintiff’s intended charitable donations, the 1^st defendant seeks the following (revised) classes of documents:

“(iii)  Copies of the accounts of the Second Plaintiff relating to the period from incorporation to the year ended 2005;

(iv)  [Documents containing details] of all donations/financial contributions made to the Second Plaintiff in the period from incorporation to 28 September 2005;

(v)  [Documents containing details] of all donations/financial contributions made by the Second Plaintiff in the period from incorporation to 28 September 2005

(vi)  [Documents containing details] of all sponsorship activities carried out by the Second Plaintiff in the period from incorporation to 28 September 2005; and

(vii)  [Documents containing details] of any other [public events or activities which the Second Plaintiff has participated in] in the period from incorporation to 28 September 2005.”

24.  I am not minded to grant item (iii).  The thrust of the 1^st defendant’s case is that the charitable activities undertaken by the 2^nd plaintiff were done with some ulterior motive, namely, to further the 1^st plaintiff’s personal and political agenda and purposes.  The 1^st defendant has not put forward any positive case to challenge or deny the fact that the 2^nd plaintiff has engaged in charitable activities.  I do not think the documents sought under item (iii) are really necessary for the fair disposal of the real issues between the parties.

25.  Item (iv) has been dropped by Mr Shieh and I need not say anything about it further.  In relation to items (v) and (vi), whilst I can see the general relevance of the documents sought, I take the view that they are too wide in scope.

26.  It should be noted that in support of the Lucas-Box meaning pleaded, the 1^st defendant has supplied voluntary particulars, setting out various events or activities which the 2^nd plaintiff has participated in, and which the 1^st defendant says have been undertaken by the 2^nd plaintiff to further the ulterior purposes of the 1^st plaintiff already described.

27.  Mr Shieh says that these activities and events were taken from the 2^nd plaintiff’s website.  He believes there are other events, some of which have been mentioned in the materials filed in support of the present application.

28.  Indeed the 2^nd plaintiff has participated in many public events and activities.  Up to 11 June 2007, the 2^nd plaintiff has apparently organised or supported no less than 13 events and activities (according to pp 267 to 268 of the document bundle used at the hearing).

29.  The 1^st defendant is taken to know what his real case is.  If he thinks that a particular activity falls within the type of activities or events that he has described in his Lucas-Box defence, he should include it by way of particulars in his pleadings.  It is for the 1^st defendant to plead (and ultimately prove) a positive case of justification.  ‘Fishing’ is never a proper reason for ordering discovery.  In this regard, I accept Mr Shum’s submission that judging from the materials thus far relied on by the 1^st defendant to establish justification in relation to this second matter, the 1^st defendant’s case is not particularly impressive.  There is, therefore, all the less reason for ordering a blanket discovery of documents relating to all the charitable donations/contributions, activities or events that the 2^nd plaintiff has made or undertaken since incorporation.  To do so would be to sanction fishing.

30.  However, in relation to the pleaded activities or events, the same criticism does not apply.  The documents sought are relevant to establishing or disproving the matters now relied on by the 1^st defendant under his Lucas-Box defence.  They are reasonably required for the fair resolution of the issues involved.  The plaintiffs have not suggested in evidence that they are too voluminous or onerous to disclose.

31.  I am therefore prepared to grant items (v) and (vi), limiting them to those activities and events already pleaded in the voluntary particulars.  For the same reasons, item (vii) is refused.

32.  If, after discovery of these documents relating to those activities and events which the 1^st defendant has particularised, the 1^st defendant can mount a more solid case by reference to his pleaded Lucas-Box meaning, there may be a better reason for ordering more general discovery relating to the other activities and events of the 2^nd plaintiff.  At this stage of the proceedings, I simply find the general discovery sought to be too wide in scope and fishing in nature, which should be refused in the Court’s exercise of discretion. 

33.  As regards costs, both sides are partially successful in relation to the application for discovery.  By way of a costs order nisi, I order that the costs of the application for discovery be in the cause, with a certificate for two counsel.

34.  As regards production, the application is premature.  I make no order in relation to the application, save that the costs of the application be to the plaintiffs in any event, to be taxed if not agreed (also by way of a costs order nisi).

35.  I thank counsel for their assistance.