RAI RAMESH v. NESCO-CHINA STATE-HIP HING-JOINT VENTURE AND OTHERS

HCPI 436 /2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.  HCPI 436 of 2007

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RULING

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1. The plaintiff was a 30 year old labourer in a construction site when he was injured in an accident on 22 July 2004.

2. Judgment on liability was entered for the plaintiff against all 3 defendants by consent on 5 October 2007.

3. This argument concerned the Interrogatories taken out by the 1^st, 2^nd & 3^rd defendants on 14 April 2008, long after the issue of liability had been conceded.

4. The defendants filed Interrogatories on 9 April 2008.  On 14 April 2008 the defendants filed the same set of Interrogatories again.

5. The plaintiff applied by Summons to have those Interrogatories to be “varied” or “withdrawn” on the ground that a set of Interrogatories on the same terms had been dealt with at the Check List Review on 11 April 2008.

6. According to my notes, the Interrogatories filed on 9 April 2008 were not dealt with on 11 April 2008. 

7. Nevertheless, having considered the Interrogatories filed on 14 April 2008, I find that the application for Interrogatories must be dismissed.

8. The law governing Interrogatories can be found in Order 26. The applicable principles can be stated briefly.

1. Interrogatories is at the discretion of the Court.  Interrogatories are often described as a “default” procedure, as Interrogatories are only allowed when other modes of discovery such as further & better particulars or notices to admit facts are unavailable or have been exhausted.

2. Interrogatories must relate to an issue in the cause or matter, or be capable of saving costs.

3. Interrogatories must not be used to obtain an admission of fact which can be proved by a witness who is to be called at Trial, otherwise costs will be increased instead of being saved.

4. An Interrogatory should not amount to fishing.  “A fishing Interrogatory is one, the objective of which the party interrogating knows nothing now, which he hopes might enable him to bring an action or make out a case different from that he is bringing at present.”

5. Interrogatories should not relate solely to a party’s credibility as opposed to a fact in issue.

6. Interrogatories should not relate to a question which is a matter of opinion, nor to the party’s sources of information or grounds of belief.

9. The Interrogatories sought were:

“    1. Apart from the direct credit of the plaintiff’s salary as a security guard into his bank account for the months of August, October, December 2007 and January 2008, please state the sources of the following monies deposited into his bank account no. 225-385152-668

12 August 2007	$5900
16 August 2007	$4500
5 October 2007	$3500
9 December 2007	$11,000
16 December 2007	$4000
10 January 2008	$4500

2. Did the plaintiff receive any other post-accident earnings apart from his salary from the Repulse Bay Garden and if so, please state how much; from whom and exhibit all documentary evidence of such earnings including pay slips, receipts, etc.

3. The security personnel permit issued to the plaintiff was for the period of 24th February 2004 to 23rd February 2009. Please state why the permit was issued to the plaintiff before the date of the accident.”

10. Miss Chui who appeared for the Defendants relied on 3 authorities at the hearing. They were (1) Ascoba Co Ltd v Safco Express Services (HK) Ltd [2005] HKEC 1185; (2) Khan Mirawas v Chan Kam Moon [2006] HKEC 1740; and (3) Tam Chun Pui v Hip Hing Engineering (Macau) Co Ltd & Others [2006] HKEC 2286.

11. None of the authorities relied upon can assist the Defendants as each of those cases clearly relate to “a matter in question between the applicant and the other party”.  In the present application there is no such “matter in question”. Miss Chui has conceded this point.

12. Liability was entered by consent on 5 October 2007. The Interrogatories were sought because the Defendants felt or suspected that the Plaintiff might possibly have a job in addition to the employment as a security guard at Repulse Bay Garden. Mere speculation or suspicions cannot amount to “a matter in question between the applicant and the other party”.

13. In the Ascoba case, the “matter in question between the applicant and the other party” was whether there had been an assignment of the business. Judge Ng stated in paragraph 30 of her Judgment that the interrogatories were relevant to customer factor and related to the transfer of the business to the defendant, therefore related to the matter in question between the parties.

14. In the Khan case, the “matter in question between the applicant and the other party” was whether the Plaintiff had been seen working when he had said he had not been working. That was the matter in question between the parties. It could be envisaged that when the matter came to Trial, the Plaintiff would be asserting that he had not been working on that crucial day, whereas the defendant would be adducing evidence from a witness to say that he had been.

15. In the Tam case, the “matter in question between the applicant and the other party” was whether there had been an accident as alleged by the applicant.

16. In the present action, the defendants have no grounds to challenge the assertion that the plaintiff had another job, other than his employment as a security guard at Repulse Bay Garden. The Defendants have no more than “suspicions”. There are no pleaded allegations nor any prima facie evidence to support their “suspicions”.

17. The Defendants only want to administer the Interrogatories in order to “see if he has another job”. In my view, that is clearly a fishing exercise.

18. In the Ascoba case, Judge Ng stated at paragraph 20 (j) that “Interrogatories are said to be “fishing” if they seek to gather facts to establish a line of attack not already pleaded, or which seek to ascertain whether a fact exists where the interrogating party had no reasonable grounds for belief in the existence of the fact…”.

19. Furthermore, it can be seen from the Interrogatories themselves that the purpose is to gather information for cross-examination purposes at the hearing of the Assessment of Damages.

20. Interrogatory No.1 seeks information on the source of those payments. Miss Chui submitted that the Defendants were “entitled” to know, but could not state the basis of that “entitlement”. Miss Chui submitted that the Defendants “should not be left to the mercy of eliciting such information by cross-examination with no opportunity to investigate the evidence then elicited at the hearing for assessment” by reliance on paragraph 31of the Judgment in Ascoba. However, as explained ante, the circumstances in Ascoba were quite different. The issue there was whether there had been a transfer of the business. There is no issue here. In the circumstances, this is nothing more than a fishing exercise.

21. The information sought in Interrogatory No.2 can and should be asked in cross-examination at the hearing for Assessment of Damages. There can be no saving of costs by allowing this interrogatory.

22. Interrogatory No.3 falls squarely into the definition of “fishing” given in the Ascoba case. It is fishing because it is clear that the party interrogating knows nothing of the alleged other job now, but hopes to be able make out a different case after obtaining further information from the plaintiff himself.

Conclusion

23. For all the reasons given, the application for Interrogatories is dismissed, with costs to the plaintiff.

24. The parties shall fix a half hour hearing before me so that the costs of this application can be assessed on a gross sum basis pursuant to O62r9(4)(b). For the avoidance of doubt, no bill of costs need be prepared for that hearing.