TO KAN CHI AND OTHERS v. TO KA YI TSO AND OTHERS

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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JUDGMENT

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Nazareth V-P:

Introduction

1. This is an appeal brought by the Secretary for Justice in her capacity as representative of the Secretary for Home Affairs, the Director of Home Affairs, the Director of Lands, the Lands Registrar and the District Office Tuen Mun ("the Government Departments"). The appeal is from an order of Yam J dismissing a motion taken out by the Government Departments seeking to set aside five writs of subpoena duces tecum issued by the plaintiffs.

Background

2. The action in the context of which the appeal arises concerns properties of the Tsing Wan Kun, which may be loosely described as a religious trust. The properties comprise a temple and a substantial amount of land. It is consolidated action which started life as two originating summonses, one issued by the Attorney General (as representative of the Crown as parens patriae) under Order 120 of the Rules of the Supreme Court, for the administration of public charitable trusts; and the other by the current 3rd defendants as dignitaries in the New Territories concerned with the proper administration of the charity. The result of the consolidation is that the To Ka Yi Tso and various persons surnamed To representing other male descendants of the To Clan were constituted the plaintiffs to assert their claim that the properties in question belong to them. The Secretary for Justice (in her capacity as representative of the SAR as parens patriae) is the 2nd defendant ("D2"). D2 claims that the Tsing Wan Kun is a public charity. The 1st defendant, Pui Man Yau alias Sik Kwok Wah is the present abbot of the temple, and he makes his own claims to the properties by way of counterclaim. The 3rd and 4th defendants play no part in the proceedings. The 5th defendant, i.e. the estate of Tat On, was joined recently as a necessary party since the plaintiffs were claiming that Tat On, a monk involved in the matter, had acted wrongfully in his dealings with certain of the properties.

3. The hearing of the action commenced before the late Jerome Chan J on 3 March 1997. By the time the trial came to its premature end on 27 March 1997, substantial evidence had already been called by the plaintiffs. The re-trial came before Yam J on 9 March 1998.

4. In the course of the opening by leading counsel for the plaintiffs, the question arose as to whether the Secretary for Justice had been sued not only as parens patriae but also in her capacity as the representative of the Government Departments. This led to extensive and protracted arguments apparently over many days between counsel for the plaintiffs and counsel for D2. The arguments were centred mainly on the pleadings, in particular, the averments relating to:

These averments are of some significance in the context of this appeal for they are relied upon by the plaintiffs as indicating the nature of the involvement of the Government Departments in the subject matter of the action.

5. Yam J ruled on the arguments on 27 March 1998, holding that Secretary for Justice in her capacity as representative of relevant Government Departments had been sued as from the date of service of the writ. D2, appealed against that ruling to the Court of Appeal. The Court of Appeal, differently constituted, noted that Secretary for Justice in her capacity as representative of the Government Departments had not been heard on the ruling and intended to apply to set aside the ruling. In those circumstances, the Court made an order that upon the setting aside of the ruling, the appeal be dismissed.

6. On 14 April 1998 counsel appeared before Yam J on behalf of the Secretary for Justice in her capacity as representative of the Government Departments and sought to set aside the 27 March 1998 ruling. The ruling was in the event set aside upon the consent of the plaintiffs. Before counsel for the Secretary for Justice (representing the Government Departments) embarked upon his substantive submission on whether the Secretary for Justice in that capacity had been joined, leading counsel for the plaintiffs conceded that the Secretary for Justice in her capacity as representing the Government Departments had not been sued and further indicated unequivocally that the plaintiffs had no intention to sue the Government. Upon that concession and indication, the Secretary for Justice (representing the Government Departments) took no further part in the proceedings. The plaintiffs then proceeded to apply for and obtain leave to make further amendments to their Statement of Claim making it clear that no relief was sought against the Government.

7. I pause here to note that the result of the concession, the Secretary for Justice's response in not taking further part in the proceedings, and the plaintiffs' amendments to give effect to their concession, had a crucial consequence from which the plaintiffs cannot resile, i.e. the Government Departments ceased to be parties to the action (not that they ever were parties on the evidence). As will be seen, that factual position has far-reaching consequences in this appeal.

8. Returning to the facts, on or about 5 or 6 May 1998, the plaintiffs issued five writs of subpoena duces tecum directed to each of the Government Departments. They were in identical terms. They each required the production of "the following documents":

I pause again here to call attention to another fact that also assumes crucial significance in the appeal. The "documents" required are entire "original files", i.e. their "entire contents".

9. The events that led to the issue of the five writs of subpoena were as follows. D2 had in the course of the proceedings made two lists of documents for the purpose of discovery of specific documents. Some of the headings to groups of individual documents in the lists identified the files from various Government Departments which contained those particular documents, and others identified the affirmations to which the related documents had been exhibited. It should be noted that the schedule did not include four files which had been discovered, been inspected by the plaintiffs' advisers, and then apparently returned to the Government Departments concerned. It should also be noted that all the "documents" required were in fact complete files and some of the particular items listed comprised several files. Mr Yu stated that his instructions were that the files were very substantial. The reference to the District Office Tuen Mun embraces no less than 20 files, of which two belong to the District Office Yuen Long. The reference to the Director of Home Affairs embraces eight files.

10. The appellant i.e. the Secretary for Justice in her capacity as representative of the Government Departments, issued a notice of motion to set aside the writs of subpoena on the ground that they were fishing, speculative or oppressive. Yam J dismissed the motion, giving an oral ruling, and subsequently releasing a written judgment.

11. In his judgment, Yam J set out the general principles applicable to the issue of a subpoena duces. tecum with extensive supporting citations. The latter are also reproduced here to illustrate the general and some specific aspects of legal position in point:

12. I pause here to observe with reference to the judge's second principle that the word "only" can be misleading.

13. Having set out the foregoing Yam J continued:

14. Before coming to those features, it has to be mentioned that while both Mr Yu for D2 and Mr Barlow for the plaintiffs generally accepted the judge's principles and authorities, both made some submissions on them although, I think, those could be said to have been more a matter of emphasis than of disagreement.

15. Mr Yu sought to emphasise in particular the following matter, i.e., the necessity for particularity of identification of documents required by a subpoena duces tecum. This he did by reference to the following passage in the judgment of Sir Donald Nicholls VC at p153 of Panayiotou v Sony Music Ltd [1994] Ch 142:

and at p. 155 which has a helpful reference to files:

The latter observations are particularly apposite to the situation in this case. Mr Yu emphasised the passage from the judgment of Hunter J in Hsin Chong Construction Co Ltd v Hong Kong and Kowloon Wharf Godown Co Ltd that I have already reproduced. He relied also upon the following statement in Matthew & Malek on Discovery (1992) at paragraph 3.72.

16. Finally, Mr Yu relied upon the passage that has already been cited from the judgment of Godfrey J in Overseas Trust Bank Limited v Coopers & Lybrand.

17. Mr Yu submitted that upon the authorities cited by Yam J and in addition those he himself relies upon, the five writs of subpoena clearly infringed the well established principles referred to in those authorities, and are objectionable as being (i) speculative, (ii) an attempt to seek discovery from witnesses, (iii) too wide and oppressive, and (iv) as not having been shown to be required as relevant and admissible evidence.

18. For his part, although Mr Barlow accepted the judge's identification of the relevant principles of law applicable and the various authorities proclaiming them, he nevertheless argued that it is sufficient if the documents required are likely to be relevant or are arguably relevant, and it would seem that his argument was also that the documents need not be material required as evidence in the action. I shall return to those submissions.

The plaintiffs' submissions

19. Mr Barlow submitted first of all that there was no general discovery sought by the plaintiffs, in that the witnesses subpoenaed were not required to undertake any search whatsoever since the files required to be produced had been identified and retained. Moreover, he submitted, the Government Departments were only required to transport the files to court, produce them and leave, since all searching, evaluation, etc had already been undertaken by the Government counsel concerned.

20. To understand and address that submission, it is necessary first of all to turn to the version of the facts that he relies upon. Earlier in the proceedings, the plaintiffs' legal representatives were permitted to inspect four files from which a number of individual documents had been discovered. Indeed, it is said that counsel for D2 referred to the four files in the process of cross-examining the plaintiffs or their witnesses; however, it transpires that it was only to documents that had been disclosed that such reference was made. Leading counsel who represented the plaintiffs at that time looked at the four files. We are told that as a result his view was that the files were each in respect of one separate subject. He is recorded as wondering if it would be convenient for the plaintiffs also to be given discovery of the original District Office file in relation to the Tsing Wan Kun. Yam J commented that he was sure that counsel for D2 was more than willing to dig up all the relevant documents and he did not think that they had to argue about discovery. The judge asked to see and referred to two of the four files, remarking that they were quite massive and counsel would have to look at them together first. From the record, it is also clear that counsel for D2 was quite prepared at that stage to have the four files referred to and to produce documents from them. Subsequently, they were returned to the Government Departments concerned and were not produced by counsel when they were again requested by the plaintiffs. However, it is important to bear in mind that none of those four files is the subject of any of the five writs of subpoena duces tecum.

21. It also appears that in relation to those four files, that there were relevant documents that had not been included in D2's original discovery. Upon that basis, it is submitted on behalf of the plaintiffs that it is highly likely that, similarly, further relevant documents are most likely to exist in the 32 files requested which do not appear in the two discovery lists submitted by D2.

22. Reverting then to Mr Barlow's submission, it can be seen quite clearly from D2's lists of documents discovered that they simply do not discover any files. What they do is discover individual documents numbered 1 to 305 grouped for convenience by reference to the files in which they are contained, the affirmations to which they are exhibited, or even by Government offices or departments to which they presumably belong.

23. Mr Barlow has argued strenuously that the entire files are likely to be relevant and material. D2's further and better list of documents, he points out, was verified by Administrative Officers from the Home Affairs Bureau and Department. He adds that leading counsel for D2 put to witnesses documents that had not been provided to the plaintiffs in the two inspection-by-copies exercises and when challenged, submitted that D2 had discovered the files, which had earlier been available for inspection, but had since been returned to the Government Departments. Counsel also confirmed that the files exist, that they were relevant to the trial issues, that they had been identified and were then available for production by the Government officials holding them. But when the plaintiffs obtained the five writs of subpoena the Secretary for Justice, he complained and challenged the five writs of subpoena. Moreover at the 12 May 1998 hearing Mr Yu had confirmed that the files were in the court building. I pause here to note that Mr Yu disputed some of those facts. But for reasons that will become clear, it is not necessary to deal with that conflict. Reverting to the factual background relied upon by Mr Barlow, Yam J, he said, found that the compilation of D2's lists of documents had not been correctly or conscientiously carried out. He submitted that it was in the light of his experience of all of that, and weeks of evidence, against the background of the pleadings - including the pleadings and the four averments mentioned, that the judge concluded and was entitled to conclude that the files sought were relevant and material evidence for the trial.

24. That submission disregards the fact that the judge has never seen the 32 files, and that there undoubtedly will be documents in the files that are not material, not relevant and not required as evidence. More to the point it overlooks the general principles relating to a subpoena duces tecum and the thrust of the authorities cited that Mr Barlow has conceded require documents to be identified. Not only are documents not identified, but the files will have to be gone through to identify them. To say that it is known that the documents exist, as Mr Barlow does, is to miss the point. Of course, the contents of the files do exist. But it is not true to say that all the documents in the files are relevant and material evidence, or that all such have been identified. That will have to be carefully done, given the experience of discovery in relation to the four files, and the nature of the four averments mentioned earlier, which must require public and the Government's interests to be protected in the ordinary way. It is difficult to simply reject Mr Yu's submission of oppression out of hand, even if one has some sympathy for the plaintiffs in regard to the inconsistent and somewhat confused manner in which those representing D2 have approached the matter of discovery and inspection. But the battle lines and the Secretary for Justice's position are now clear. And at the end of the day inconsistency and generosity in voluntary disclosure cannot be a substitute for the established criteria regulating the issue of a subpoena duces tecum - a fortiori where the inconsistency, earlier discovery of files, and other conduct relied upon were not that of the Government Departments sought to be subjected to the writs of subpoena. Moreover in treating every single document in the files as relevant and necessary evidence notwithstanding that all of them have not been identified and their contents not known and not even individually claimed to be relevant and material, it seems to me that the judge clearly erred in law, in principle and upon the facts in concluding that all the files in entirety were relevant and necessary evidence required for the action. The appeal must succeed on this point alone, for the necessity for the documents sought to be both material and required cannot be substituted or displaced; that is in any case not suggested.

25. Nevertheless I turn then to Mr Barlow's submission on relevance. This he founds upon the following words of Steyn J (as he then was) in The Lorenzo Halcoussi at p. 184:

26. There can be no dispute, Mr Barlow submitted, that the files in question are known to be in existence. However, I do not read the latter words of Steyn J as a general proposition that that if documents are known to exist, then the relevant subpoena cannot be a mere fishing or speculative expedition. That may be so where there is no question of relevance or admissibility. But here both matters are very much in issue since the contents of most of the documents in the files are not actually known. Accordingly, in the particular circumstances, it would be in the nature of fishing or speculation to require all those documents to be produced, in effect to see which, if any, documents would be material evidence required, or relevant and admissible evidence (and in effect which would not). That, incidentally, is exactly what discovery entails.

27. I add that for the reasons already indicated, I reject the submission that relevance is established by the ruling of the judge to that effect with the benefit of many weeks of submissions and evidence. There was no evidence of the contents of the files, much less evidence of the entire contents of all that files. Nor do the plaintiffs know the contents of the files, a fortiori all the contents of all the files.

28. Mr Barlow sought also in a similar vein to rely upon R v Clowes [1992]3 All ER 440. Two issues were canvassed before Philips J there. The first was whether Mr Jordan was in a position to satisfy him that the documents he had been required to produce were not "likely to be material evidence". It is important to note at the outset that those words, "likely to be material evidence", were not being there adopted as some sort of criteria that the courts had formulated to regulate the production of documents by witnesses. They were in fact the criteria provided by s.2(2) of the Criminal Procedure (Attendance of Witnesses) Act 1965. There is no suggestion that any similar statute applies in Hong Kong. To breach that gap, Mr Barlow took us to Macmillan Inc v Bishopsgate Investment Trust Plc [1993] 1 WLR 837 at 841H, 842A-B where the following passage appears in the judgment of Millet J (as he then was):

I do not think this passage avails Mr Barlow. In the first place, Millet J's reference to the same principle applying to civil proceedings was a reference to the principle that the process of subpoena duces tecum has always been limited in the past to evidence which is both material and admissible. Secondly, the test that the document was "likely to be material evidence", came from s.2 of the Criminal Procedure (Attendance of Witness) Act 1965, which as I have said, does not apply in Hong Kong, nor is there a corresponding local provision. Moreover, in Macmillan, having already been concerned in the Clowes case in the way apparent from the judgment of Philips J, Millet J ultimately declined to uphold the subpoena to produce documents, and said that if it were necessary to distinguish Clowes, he "would do so first on the ground that that was a criminal case and secondly, more importantly, that in that case the court was satisfied that the defence would probably wish to adduce the documents in evidence."

The "distinguishable" features

29. Mr Barlow significantly did not make any submissions to support these features other than to say that he adopted Yam J's reasons for his decision. Mr Yu submitted in effect that what were claimed as "distinguishable" features did not avail the plaintiffs.

30. I turn then briefly to the "distinguishable" features relied upon by Yam J, to displace the principles he had identified. I adopt the numeration which he gave them, indicating first the particular feature, and then my view upon it:

Interlocutory appeals to be discouraged

31. There remains to be dealt with Mr Barlow's point that interlocutory appeals during trial should be discouraged (see the Supreme Court Practice 1997, Vol. 1, p.364 para. 20/5-8/15), also Lam Choi King v Yeung Fook Chi and others [1991] 1 HKC, 219 CA at 226G-227D).

32. That principle is not in doubt, and has been reinforced by the increasing emphasis by this Court upon case management by the trial judge. However, here it is a matter of non-parties being vexed and probably also oppressed by having to examine the massive files involved. Moreover, it is not a question of the particular matter being capable of being remedied on appeal post trial, as is ordinarily possible in matters inter partes. While not underrating the disruptive and potentially prejudicial effect of this appeal upon the plaintiffs, particularly in the context of prolonged hearings, I have no doubt that the non-party Government Departments must be permitted to proceed with their appeal.

33. I accordingly have no hesitation in rejecting Mr Barlow's submission.

Conclusion

34. For the reasons I have endeavoured to give, I would allow the appeal. As to costs it seems to me that the costs of the Secretary for Justice as representative of the Government Departments have been significantly contributed to by the inconsistent and somewhat confusing stance originally adopted on her behalf, which in part brought the appeal upon herself. I would accordingly order nisi that she is to have only 75% of her costs of the appeal.

Liu, JA:

35. Before us, leading counsel for Secretary for Justice (for the five Government Departments concerned) Mr Yu reaffirms that "if the plaintiffs are able to identify precisely which documents among these numerous files they wish to be produced by way of relevant and admissible evidence, the various Government Departments would, subject to any claim of privilege or possible public interest immunity, have no objection to producing these files". That sums up what a stranger to an action could lawfully be compelled to produce.

36. Yam, J. was satisfied by "past experience" that the documents in what we now know to be some 32 files kept by these five Government Departments were "likely to contain material evidence" relevant to the fair disposal of the issues before him. Five subpoenae duces tecum were issued, and the judge refused to discharge them primarily on his inferential finding. By "past experience", the judge referred to conduct of counsel and the procedure jointly adopted for processing four other Government Department files during the hearing. Could this inferential finding of the judge based on "past experience" be overturned? This aspect has greatly troubled me in this appeal. It is to be noted that the five Government Departments are not resisting, perhaps understandably, the subpoenae on the ground of claimed irrelevance or inadmissibility but that the issuance of these five writs of subpoena is sought to be challenged on first principles. But my Lord, the Vice-President has alluded to the fact that the judge had no sight of these 32 files. The observation made during the hearing before Yam, J. by Mr Fung, leading counsel for the Secretary of Justice (but not acting for these five Government Departments) that joint inspection of Government files would be expected to be productive was not an admission as to relevance or otherwise of their contents. No such concession was or could have been made even for the four files from which documents were then extracted jointly by counsel for use or production. Insofar as counsel's observation could be understood to have been made by reference to relevancy, he merely "suspected that the original files .... would have the same function". Counsel was doing no more than airing his personal satisfaction that the co-operative spirit in sorting out documents was highly commendable and that the same process for other Government Department files would likely be productive. His remark was made exclusively on the modus operandi. There is no clear evidence that these 32 files were all in court or that counsel had perused any of them. As a matter of fact, the judge was able to say that Mr Fung S.C., counsel for Secretary for Justice, "was not familiar with how to read a government file and ...... could not have advised on their relevance and discoverability." Mr Fung was not acting for these five Government Departments and had certainly no instructions to make any concession. It was also inaccurate to assume that all or part of these Government Department files had been discovered in the lists of documents. What happened was: in the headings of various sections of the lists, the Government Department files were identified as the source for the specific documents therein disclosed. Clearly, "past experience" could not assist the judge. There was no or no sufficient material for the judge to make a finding on the nature of the contents of these 32 files. It was not open to the judge to conclude that there was "a real likelihood that those documents in those files ....[were] relevant ..... [or] likely to contain material evidence". His inferential finding cannot stand.

37. The respondents have not been able to identify any material documents in these 32 Government Department files. The trite principles apply. On what has transpired, these Government Departments are not shown to have acted unreasonably. The circumstances were unusual but there would seem to be no warrant for sustaining the five writs of subpoena.

38. I have had an opportunity of reading in draft the judgment of the Vice-President. I agree with his conclusion for the reasons he gives. I, too, would allow this appeal with an order nisi for costs the Vice-President proposes to make.

V. Bokhary J:

39. I respectfully agree with my Lord the Vice-President and Mr Justice Liu J.A. Like them, I too would allow this appeal to set aside the five subpoenae duces tecum in question and make an order nisi awarding the Secretary of Justice 75% of her costs of the appeal.

40. As it seems to me, nothing which Mr Barlow for the Plaintiffs has urged can deflect the conclusion that what his clients have done amounts to an attempt to obtain general discovery by way of subpoena. It is a well-established general principle that such a course is not permissible.

41. The cumbersome state into which civil litigation has gotten itself does not dispose me towards drawing fine, or even not so fine, distinctions on the facts of particular cases so as to create exceptions to that salutary rule. But even if I were so disposed, I would not regard the circumstances of the present case as appropriate for the creation of any such exception.

Nazareth V-P:

42. The appeal is accordingly allowed and the judge's order and the five writs of subpoena set aside. There will also be an order nisi that the Secretary for Justice in her capacity as representative of the five Government Departments is to have 75% of her costs of the appeal.