KWONG SIN YEE FLORENCE v. CATHAY PACIFIC AIRWAYS LTD

DCMP 787/2025

[2025] HKDC 1251

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 787 OF 2025

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DECISION

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1.  By an Originating Summons dated 6 February 2025, the Plaintiff applies for a pre-action discovery/Norwich Pharmacal order against the Defendant, pursuant to section 47A And 47B of the District Court Ordinance, Cap 336 (“DCO”), Order 24, rule 7A of the Rules of the District Court, Cap 336H (“RDC”) and the inherent jurisdiction of the District Court.

2.  The Defendant has taken a neutral stance in the present application and was excused from attending the hearing. 

Procedural history

3.  This application was first heard by Deputy District Judge Ebony Ling on 28 March 2025.

4.  No skeleton submissions were filed by the Plaintiff for the purpose of that hearing, presumably because that hearing was, strangely, only set down for 15 minutes.

5.  At the hearing, the learned Deputy Judge raised a number of initial queries with the legal representatives of the Plaintiff, concerning, inter alia, the applicability of sections 47A and 47B of the DCO to the facts of the present case. Given the inadequacy of the time allocated for that hearing, the Deputy Judge adjourned the OS to a hearing reserved for 1 hour for substantive argument.

6.  The adjourned hearing was set down and heard by me on 7 May 2025.

7.  Mr Cheng Siu Hang of Messrs. C L Chow & Macksion Chan appeared on behalf of the Plaintiff and filed a short skeleton submission in advance of the hearing. Unfortunately, those submission were, in my view, insufficient to allay the concerns that this Court harboured in relation to the Plaintiff’s application.

8.  At the conclusion of the hearing, I directed that Mr Cheng should, within 7 days therefrom, file further written submissions addressing, inter alia, the existence of the District Court’s alleged inherent jurisdiction to grant Norwich Pharmacal orders, as relied on by the Plaintiff.

RELEVANT BACKGROUND

9.  The Plaintiff alleges that, on 5 June 2022, she sustained an injury while onboard a flight, operated by the Defendant, from San Francisco to Hong Kong.

10.  The Plaintiff’s designated seat number on this aircraft was 74D, an aisle seat. It is alleged by the Plaintiff that, after boarding the aircraft, she temporarily moved to sit in seat 74C, the seat immediately across the aisle from her designated seat. The Plaintiff contends that she temporarily moved seats because other passengers were busily moving their carry-on baggage into the overhead compartments on one side of the aisle.

11.  While settling into seat 74C, the Plaintiff alleges that something heavy struck her head from above, causing her sharp pain in her neck and right shoulder. The Plaintiff then noticed that an item of baggage had fallen next to her in the aisle.

12.  The Plaintiff states in her supporting affirmation that apparently, the item of baggage had been dislodged from the overhead locker by a female passenger attempting to stow it into the overhead compartment.

13.  Following this incident, a female flight attendant hurried over to assess the situation and to check on the Plaintiff’s condition. This flight attendant picked up the item of baggage and, according to the Plaintiff, said that it was overweight. With the help of the aforementioned female passenger, the flight attendant managed to secure the item of baggage in the overhead compartment. Once safely stowed, the flight attendant assured the Plaintiff that she would report the incident to the ground manager of the Defendant.

14.  Shortly thereafter, a female, identifying herself as the ground manager, boarded the aircraft and approached the Plaintiff. She informed the Plaintiff that she had been notified about the accident and inquired with the Plaintiff if she required immediate medical treatment, but stated that if immediate medical treatment was required, the Plaintiff would need to disembark. The Plaintiff refused medical assistance.

15.  Before leaving, the female ground manager assured the Plaintiff that the incident would be formally documented and advised the Plaintiff to contact the Defendant directly should further follow up be required.

16.  Upon landing in Hong Kong, the Plaintiff was required to undergo quarantine due to the Covid 19 pandemic. The Plaintiff requested to be taken to hospital due to her neck pain continuing, unabated.

17.  The Plaintiff has exhibited a medical report to her 1^st Affirmation prepared by Queen Mary Hospital dated 24 April 2024 and a letter from Dr Tsoi Chun Hing, Ludwig, the doctor that examined the Plaintiff on 6 June 2022, dated 3 May 2024.

18.  The Plaintiff has also exhibited, to her 2^nd Affirmation, medical records from physical examination which were conducted on her from June to September of 2022 as well as physiotherapy receipts from that same period. 

19.  The Plaintiff believes that the accident was caused by the negligence of the female passenger and has deposed to her intention to commence proceedings against this female passenger for damages.

20.  By the OS, the Plaintiff seeks an order that the Defendant do, within 14 days, provide to her solicitors with:-

“the personal information, namely the full name, passport / identity card number and address of a female passenger who caused a piece of hand-on baggage to fall on the head of the Plaintiff on board flight no. CX851 operated by the Defendant from San Francisco to Hong Kong of 5^th June 2022”

21.  The Plaintiff submits that the personal information of the female passenger is necessary for her to initiate and advance her claim.

22.  I will turn to consider the Plaintiff’s application for disclosures under sections 47A and 47B of the DCO before considering her application for a Norwich Pharmacal order under the District Court’s purported inherent jurisdiction.

Section 47A of the DCO

23.  Section 47A of the DCO provides statutory power to the District Court to order disclosure of documents before the commencement of proceedings, and provides as follows:-

“47A. Power of the Court to order disclosure etc. of documents before commencement of proceedings

(1) A person who appears to the Court to be likely to be a party to subsequent proceedings may apply to the Court for an order for discovery of documents against a person who is likely to be a party to the proceedings and who has in his possession, custody or power documents directly relevant to an issue arising out of the claim.

(2) The application is to be made in accordance with rules of court.

(3) The Court may order the person, if it appears to it that the person is likely to have or to have had in his possession, custody or power any directly relevant documents –

(a) to disclose whether those documents are in his possession, custody or power; and

(b) to produce the documents in his possession, custody or power to the applicant or, on the conditions specified in the order –

(i) to the applicant’s legal advisers;

(ii) to the applicant’s legal advisers and a medical or other professional adviser of the applicant; or

(iii) if the applicant has no legal adviser, to a medical or other professional adviser of the applicant.

(4) For the purposes of subsection (1) and (3), a document is only to be regarded as directly relevant to an issue arising out of a claim in the anticipated proceedings if –

(a) the document would be likely to be relied on in evidence by any party in the proceedings; or

(b) the document supports or adversely affects any party’s case.” (emphasis added)

24.  From the parts of the statutory provision which I have emphasised above, it is obvious that the Plaintiff faces what can only be described as insurmountable difficulties in obtaining the order sought under section 47A of the DCO.

25.  First, section 47A(1) clearly states that the powers conferred by the section apply only where the discovery is sought against a person who is likely to be a party to the subsequent proceedings.

26.  At the hearing, Mr Cheng has conceded that the Defendant is not likely to be a party to the intended subsequent personal injury proceedings and has accepted that section 47A is not applicable in the present case.

27.  Secondly, section 47A relates and refers only to the discovery of ‘documents’. It does not confer any power to the District Court to order the provision of ‘information’. Given the wording of the OS and the contents of the Plaintiff’s 1^st Affirmation, the Plaintiff only seeks “personal information” of an individual and makes no reference, whatsoever, to any documents which are, or even may be, in the possession, custody or power of the Defendant. “Personal information”, as expressly sought in the OS, is not a document.

28.  Thirdly, under section 47A(1), the documents sought must be directly relevant to an issue arising out of the claim. Under section 47A(4), a document is only regarded as directly relevant to an issue if (a) it would be likely to be relied on in evidence or (b) it supports or adversely affects any party’s case.

29.  The Plaintiff has failed to demonstrate how the disclosures sought satisfy the above test for direct relevance.

30.  Each of these factors would, individually, bar the Plaintiff from any relief sought under section 47A of the DCO.

Section 47B of the DCO

31.  Section 47B of the DCO provides an extension of the court’s powers to order disclosure of documents and inspection of property, and provides as follows:-

“47B. Extension of powers of the Court to order disclosure of documents, inspection of property, etc.

(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.

(2) The Court may order the person, if it appears to it that the person is likely to have or to have had in his possession, custody or power any directly relevant documents –

(a) to disclose whether those documents are in his possession, custody or power; and

(b) to produce the documents in his possession, custody or power to the applicant or, on the conditions specified in the order –

(i) to the applicant’s legal advisers;

(ii) to the applicant’s legal advisers and a medical or other professional adviser of the applicant; or

(iii) if the applicant has no legal adviser, to a medical or other professional adviser of the applicant.

(3) A party to proceedings in an action, in which a claim is made, may apply to the Court for an order against a person who is not a party to the proceedings for, and the Court may order –

(a) the inspection, photographing, preservation, custody and detention of property which is not the property of, or in the possession of, a party to the proceedings but which is the subject-matter of the proceedings or as to which any question arises in the proceedings;

(b) the taking of samples of the property mentioned in paragraph (a) and the carrying out of experiment on or with the property.

(4) An application under this section is to be made in accordance with rules of court.

(5) The powers in this section are in addition to the power of the Court to make orders which is exercisable apart from this section.

In this section, property (財產) includes any land, chattel or other physical property of any description.” (emphasis added)

32.  As with section 47A, the Plaintiff’s present application does not fall within the scope of section 47B of the DCO. I find this to be so for two reasons.

33.  First, and as I have already stated in this judgment, the Plaintiff seeks only ‘information’ from the Defendant in her present application. Section 47B of the DCO provides the District Court with power to order disclosure of ‘documents’ and/or inspection of ‘property’ only.

34.  The Plaintiff, by her OS, seeks neither (and has not identified or specified any) documents or property. Section 47B of the DCO does not confer any jurisdiction or power on this Court to order the disclosure or provision of mere ‘information’ to an applicant.

35.  On this basis alone, the disclosures sought by the Plaintiff are outside the scope of section 47B of the DCO.

36.  Secondly, on my interpretation of section 47B, a pre-requisite requirement for any application brought under section 47B is that the applicant must be a party to proceedings that have already been commenced and where a claim is extant. The words “A party to proceedings in an action, in which a claim is made, may apply” in subsections (1) and (3) make this requirement very clear.

37.  Order 24, rule 7A RDC further propounds the interpretation that section 47B applies only in situations where proceedings and a claim have already been commenced. The relevant parts of the rule provide:-

“7A. Application under section 47A or 47B(1) of the Ordinance (O. 24, r.7A)

(1)…

(2)An application after the commencement of proceedings for an order under section 47B(1) of the Ordinance for 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.

(3)…” (emphasis added)

38.  Mr Cheng submits that the words “to proceedings in an action, in which a claim is made” in section 47B(1) should be given a wider interpretation.

39.  Mr Cheng relies on the judgment of Deputy High Court Judge Seagroatt in Chan Chuen Ping v The Commissioner of Police [2014] 1 HKLRD 142 in support of his wider interpretation argument.

40.  In the case before him, DHCJ Seagroatt was presented with an application for pre-action discovery pursuant to, inter alia, section 42 of the High Court Ordinance, Cap 4 (the “HCO”).

41.  Section 42 of the HCO essentially mirrors section 47B of the DCO. The words “A party to proceedings in an action, in which a claim is made, may apply” in section 47B(1) of the DCO is essentially reflected in section 42(1) of the HCO, which provides “On the application … of a party to any proceedings in which a claim is made”.

42.  DHCJ Seagroatt held that section 42 of the HCO was:-

“capable of a construction which would imply the following –

“On the application, of a party to any existing or contemplated proceedings in which a claim is or may be made, the court … shall have etc””.[1] (emphasis added)

43.  In other words, it was the opinion of the DHCJ Seagroatt that section 42 of the HCO should not be limited to existing proceedings in which a claim had already been made but rather, should be interpreted as extending also to situations where proceedings are “contemplated” and where a claim “may” be made in the future by an applicant.

44.  It is this construction, specifically, that Mr Cheng prays in aid of for the purposes of the Plaintiff’s application under section 47B of the DCO. I am unable to accept Mr Cheng’s submission in this regard.

45.  At the commencement of the hearing, I handed to Mr Cheng, the judgment of Chow J (as he then was) in Leung Yiu Ting v MTR Corporation Limited [2019] HKCFI 2321.

46.  In Leung Yiu Ting, the court was tasked with determining a pre-action discovery application by the plaintiff in relation to CCTV footage from two of the MTR stations operated by the defendant on specific dates and at specified times. As in the present case, the plaintiff in Leung Yiu Ting had not yet commenced proceedings, but had stated that he intended to bring a claim against the Commissioner of Police for personal injuries and loss and damage arising from alleged assault and wrongful and/or unlawful arrest.[2]

47.  The plaintiff in Leung Yiu Ting relied on (i) section 42 of the HCO and Order 24, rule 7A of the Rules of the High Court and (ii) the inherent jurisdiction of the CFI as the bases of the application.

48.  Counsel for the plaintiff therein, referred Chow J to DHCJ Seagroatt’s judgment in Chan Chuen Ping and relied on DHCJ Seagroatt’s wider interpretation of section 42 of the HCO in support of the application.

49.  In his judgment, Chow J disagreed with DHCJ Seagroatt’s wider interpretation of Section 42 of the HCO and stated the following at §10 of his judgment:-

“10. In my view, it is precisely because the court has an inherent jurisdiction to make an order for pre-action discovery against a non-party in appropriate cases that it would not be necessary to strain the language of Section 42 to extend its application to the situation of contemplated proceedings. In any event, the court has no power to re-write the legislation in order to achieve what may be thought to be a desirable result in a particular case. In my view, it would involve an impermissible re-writing of Section 42 to make it applicable to contemplated proceedings.”

50.  In the same paragraph, Chow J went on to refer to, and agreed with, the views expressed by Bharwaney J in Chan Yim Wah Wallace v New World First Ferry Services Limited, HCPI 820/2013 (unreported, 8 May 2015) in relation to the scope of section 42 of the HCO.

51.  Referring to DHCJ Seagroatt’s wider interpretation, Bharwaney J stated at §23:-

“Tempted as I am to agree with the learned Judge, I find myself unable to do so. In my judgment, applications under s.42 and O.24 r.7A(2) can only be brought when proceedings have already been commenced. The statute cannot be construed otherwise. A similar argument, in reliance on English Civil Procedure Rule 31.17, which is the equivalent of O.24 r.7A giving effect to s.42, was rejected by Mann J. in Various Claimants v News Group Newspapers Ltd.”

52.  I entirely agree with the views and interpretation expressed by both Chow J (as he then was) and Bharwaney J in the above cited judgments.

53.  As the Plaintiff is not a party to existing proceedings in which a claim has been made, she is unable to rely on section 47B of the DCO to obtain the relief that she seeks.

54.  In the premises and for either of the two reasons which I have explained above, the Plaintiff’s application, in so far as it relies on section 47B of the DCO, must fail.

Norwich Pharmacal – Legal principles

55.  In the alternative to the jurisdiction conferred by sections 47A and 47B of the DCO, the Plaintiff seeks to rely on the District Court’s inherent jurisdiction to make a Norwich Pharmacal order.

56.  The principles relating to applications for Norwich Pharmacal relief are well settled and have been summarised in the judgment of Madam Recorder Yvonne Cheng SC (as she then was) in A v P company & Others [2018] HKCFI 907 at §§4-5:

“4. A Norwich Pharmacal order is not a usual order. It is not lightly granted in the absence of powerful factors:

(1) It is made against an innocent party whose only involvement is to have become mixed up in the tortious or wrongful activities of others.

(2) The wrongdoing exists only on the part of a person or persons against whom no relief may be sought at the stage of the application and against whom there is probably insufficient evidence to found an action.

(3) There will usually be a legal relationship between the innocent person against whom a discovery order is sought and the alleged wrongdoer, and the relationship may involve strict duties to be observed on the innocent party’s part. Any discovery to be made will involve a breach of confidentiality and may expose the innocent party to civil liability and possibly even criminal liability.

(4) The court must accordingly balance the competing interests of the victim of the alleged wrongdoing and an innocent party caught up in the wrongdoing.

See A Co v B Co [2002] 3 HKLRD 111 at [12], per Ma J (as he then was).

5. Given the extraordinary nature of the relief, in order for a Norwich Pharmacal order to be made:

(1) there must be cogent and compelling evidence to demonstrate that serious tortious or wrongful activities have taken place, the degree of proof required being commensurate with the seriousness of the allegations;

(2) it must be clearly demonstrated that the order will or will very likely reap substantial and worthwhile benefits for the plaintiff. Where the plaintiff is likely to make a tracing claim, there must be a serious possibility that the discovery sought will allow the plaintiff to preserve what may well be his assets or realistically lead to the discovery of such assets;

(3) the discovery sought must not be unduly wide; there is no entitlement to general discovery. The order must be specific, and be restricted to those documents or classes of documents that are necessary to enable the plaintiff to preserve or discover assets; and

(4) the plaintiff must have exhausted other proper and reasonable avenues for obtaining the information sought.

See A Co v B Co at [13]; Danone Asia Pte Ltd v SB Chow & Co [2009] 1 HKLRD 470.”

57.  It should be noted that the power of the court to grant Norwich Pharmacal relief is discretionary and the court is not bound to order disclosure merely because an applicant has satisfied the threshold requirements of the Norwich Pharmacal principle. The discretion will only be exercised if it is established as a necessary and proportionate response in all the circumstances. This discretion is made clear in the judgment of Bharwhaney J in Chan Yim Wah Wallace at §§24-25:-

“24. … discovery under the Norwich Pharmacal principle is a matter of equitable relief to be granted by the exercise of the discretionary power of the court.

25. The freedoms we enjoy include the freedom to withhold information from fellow citizens, except to the extent that the law places a duty on us to produce documents or disclose some specific information. No obligation of disclosure arises where a person has merely witnessed a wrong. He may be called to give evidence as a witness at trial and asked on oath to divulge information but he cannot be required to provide a party with information in advance of the trial. However, the Norwich Pharmacal principle can be invoked to obtain discovery from a non-party if, through no fault of his own, he gets mixed up in the tortious acts of others so as to facilitate their wrongdoing. It would be unjust for a person who facilitated or was involved in a wrong against another to deny the victim the information he requires in order to seek vindication of the wrong. Although he may incur no personal liability, he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. However, the court is not bound to order disclosure merely because the applicant has fulfilled the threshold requirements of the Norwich Pharmacal principle. This is a discretionary jurisdiction that the court would exercise only if it is established to be a necessary and proportionate response in all the circumstances… . Disclosure is necessary if it would enable a person to vindicate his rights and prevent a sense of the injustice that would ensue if the court did not come to his assistance and order disclosure. Clearly, there is strong public interest in allowing an applicant to vindicate his legal rights. However, countervailing proportionality factors may also need to be taken into account such as whether or not the information could be obtained from another source, the intrusive effect of the disclosure order on the non-parties, the degree of confidentiality of the information sought and the privacy and data protection rights of the individual whose identity is to be disclosed… .” (emphasis added)

Norwich pharmacal – Jurisdiction

58.  As a precursor to any consideration of the above principles, this Court must first determine whether it possess the requisite jurisdiction or power, express or otherwise, to grant the Norwich Pharmacal order sought by the Plaintiff.

59.  At the hearing I indicated to Mr Cheng that I harboured reservations as to whether the District Court, as a court of statutory creation, possesses the jurisdiction to grant Norwich Pharmacal orders. It is the submission of the Plaintiff that the District Court has the power to grant Norwich Pharmacal orders pursuant to its inherent jurisdiction.

60.  I am aware that there have been a significant number of judgments of the District Court, where Norwich Pharmacal orders have been made in the past, pursuant to a purported “inherent” jurisdiction.

61.  However, I have not been able to locate any judgment which has engaged in substantive analysis or addressed the jurisdictional foundation of the District Court’s power to grant such orders in any meaningful depth.

62.  In any event, I am not bound by previous decisions of the District Court, and I find myself unwilling to accept that, simply because the District Court has granted Norwich Pharmacal orders in the past, that this must mean that this Court is seized with such jurisdiction or power, inherent or otherwise.

63.  I am also not aware of any confirmation, by an appellate court in Hong Kong, as to the existence of an inherent jurisdiction, or implied power, of the District Court to grant Norwich Pharmacal orders.[3]

64.  In his Supplemental Skeleton Submissions, Mr Cheng did not advance any substantive positive submissions on the issue. Rather, Mr Cheng cited and explained three authorities. These were:-

(1)  The Court of Final Appeal judgment in Ng Yat Chi v Max Share Ltd & Anor (2005) 8 HKCFAR 1, which was a case concerning the court’s inherent jurisdiction to make orders preventing anticipated proceedings by vexatious litigants;

(2)  The judgment of Her Honour Judge Levy in Chan Tak On v Much More Human Resources Co Ltd & Another [2023] HKDC 661, wherein the learned Judge, relying on the CFA decision in Ng Yat Chi, held that the District Court possessed an inherent jurisdiction to strike out a claim so as to prevent abuse; and

(3)  The judgment of His Honour Judge Leung in Able Force Freight Limited v East Sun Estate Management Limited [2010] 2 HKLRD 1155, wherein the learned Judge granted a Norwich Pharmacal order without reference to any statutory enactment and without substantive analysis as to the jurisdictional foundation of the District Court’s power to grant such an order.

65.  Unfortunately, these authorities are of little assistance in addressing the question of whether this Court possessed the jurisdiction or power to grant the Norwich Pharmacal order sought.

66.  In relation to the Plaintiff’s reliance on Able Force Freight Limited, I repeat what I have already stated above, that I am not bound by previous decisions of this Court, and I am unwilling to accept that, simply because this Court has granted Norwich Pharmacal orders in the past, that this means that it possesses the necessary jurisdiction or power to so order.

67.  As to the remaining two authorities cited by the Plaintiff, I also do not find them helpful to the present analysis of jurisdiction or power.

68.  Simply because the District Court has been held to have the same inherent jurisdiction/power as the Court of First Instance to grant a particular type of order, does not mean that the District Court is seized with the same inherent jurisdiction/powers as the Court of First Instance, generally or in all other circumstances.

69.  The distinction between the Court of First Instance and the District Court is of fundamental importance in this regard.

70.  The Court of First Instance is a superior court of record, possessing unlimited civil and criminal jurisdiction: Sections 3 and 12 of the HCO.

71.  Section 3 of the HCO stipulates:-

“(1) There shall be a High Court of the Hong Kong Special Administrative Region consisting of the Court of First Instance and the Court of Appeal.

(2) Subject to the provisions of this Ordinance, the High Court shall be a court of unlimited civil and criminal jurisdiction.” (emphasis added)

72.  Section 12 of the HCO further provides:-

“12. Jurisdiction of the Court of First Instance

(1)  The Court of First Instance shall be a superior court of record.

(2)  The civil jurisdiction of the Court of First Instance shall consist of—

(a)  original jurisdiction and authority of a like nature and extent as that held and exercised by the Chancery, Family and Queen’s Bench Divisions of the High Court of Justice in England; and

(b)  any other jurisdiction, whether original or appellate jurisdiction, conferred on it by any law.”  (emphasis added)

73.  The significance of the Court of First Instance being a superior (as opposed to an inferior) court of record is that the ‘presumption of jurisdiction’ applies to it. This means, prima facie, that no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so.[4]

74.  By contrast, the District Court is an inferior court of record with its jurisdiction and powers limited to those conferred upon it by statute.

75.  Section 3 of the DCO provides:-

“3. Establishment of the District Court, and its general jurisdiction

(1)  A court known as the District Court is established.

(2)  he Court shall be a court of record and shall have such civil and criminal jurisdiction and powers as are conferred upon it by this Ordinance and by any other enactment for the time being in force.

(3)  he jurisdiction and powers conferred by any other enactment for the time being in force shall be subject only to such limitations as such enactment may provide or may have provided.”

76.  Being an inferior court with limited jurisdiction, no presumption of jurisdiction exists in its favour. This is made clear by the wording of section 3 of the DCO.

77.  Notwithstanding the statutory restriction on the jurisdiction and powers of the District Court imposed by section 3 of the DCO, the Court of Final Appeal has clarified that inferior courts may, in the absence of an express statutory power, have ‘implied’ powers to grant certain orders.

78.  In PCCW-HKT Telephone Ltd v Telecommunications Authority (2005) 8 HKCFAR 337, Bokhary PJ said at §36:-

“36. Absent express power of a particular kind, a question can arise as to whether a superior court has inherent power of that kind.  In regard to an inferior court or tribunal, the equivalent question is whether there is such implied power.  And the correct test for determining whether an inferior court or tribunal has an implied power is, in my view, the one articulated by Dawson J in Grassby v. R (1989) 168 CLR 1 at p.17 and accepted by the other members of the High Court of Australia hearing that appeal.  It comes to this.  An inferior court or tribunal has such ancillary powers as are derivable by statutory implication and are required for the effective exercise of jurisdiction expressly conferred upon it.  This is the governing proposition in the present case since the Appeal Board is an inferior tribunal in the jurisdictional sense although of course not in any pejorative sense.” (emphasis added)

79.  Agreeing with the Bokhary PJ, Ribeiro PJ held at §60:-

“60. Does such a power exist in the Board either by express provision or by implication?  I agree with Mr Justice Bokhary PJ that the proper approach to implying such a power is that set out in Grassby v. R (1989) 168 CLR 1 at 17, as explained in Pelechowski v. Registrar, Court of Appeal (NSW) (1999) 198 CLR 435: such a power will be implied where it is necessary in the sense of “reasonably required” for the effective exercise of the statutory jurisdiction expressly conferred on the inferior court or tribunal concerned.” (emphasis added)

Express statutory power

80.  As a starting point, it must be considered whether the power to grant the Norwich Pharmacal relief is expressly provided for by the DCO or by any other enactment.  

Section 52 of the DCO

81.  It was the view of Deputy District Judge Kenneth KY Lam in A v B [2019] HKDC 594, that Norwich Pharmacal orders fall within the ambit of section 52 of the DCO. In his judgment, the learned Judge stated:-

“3. Section 52 of the District Court Ordinance (Cap 336) gave this Court statutory powers to grant “injunctions of whatsoever nature” in all matters affecting movable property, including money and choses in action, where the amount or value thereof did not exceed HKD 3 million. Norwich Pharmacal and Gagging Orders are within the ambit of Section 52.”

82.  Unfortunately, the learned Judge did not elaborate further as to how he had reached this view.

83.  If the learned Judge had meant that Norwich Pharmacal orders fall within the ambit of section 52 of the DCO because they should be considered a form of mandatory injunction (and are therefore expressly provided for by statute), then I would have to, with the greatest of respect, disagree.

84.  Whilst both a Norwich Pharmacal order and a mandatory injunction contain a mandatory element, there are fundamental differences between the two.

85.  A Norwich Pharmacal order is a disclosure order. In my view, it is procedural in its nature, compelling a third party to disclose documents or information which will assist an applicant in the formulation or conduct of their case against a wrongdoer, normally in entirely separate proceedings.

86.  An injunction, by contrast, is a substantive remedy which may be granted by a court to abate wrongs currently existing or to prevent wrongs that have not yet been committed. 

87.  I therefore do not consider a Norwich Pharmacal order as an injunction, within the meaning or ambit of section 52 of the DCO, or otherwise.

88.  Consequently, the Plaintiff is unable to rely on section 52 of the DCO as expressly conferring jurisdiction, or power, on this Court to grant the Norwich Pharmacal order she seeks.

Section 48 of the DCO

89.  Section 48 of the DCO confers the District Court with, inter alia, the same power as the Court of First Instance, in any proceedings before it, to grant relief, redress or remedy, or combination of remedies, either absolute or conditional which ought to be granted or given.

90.  Previous judgments of this Court, with which I agree, have made it clear that section 48 (and indeed section 52) is not a jurisdiction-conferring provision and only provides ancillary jurisdiction to the District Court to make various kinds of orders once primary jurisdiction to hear a particular case has been established.[5]

91.  The primary civil jurisdiction of the District Court is conferred by the following sections of the DCO:-

(1)  Section 32: Actions in contract, quasi-contract and tort;

(2)  Section 33: Actions to claim money recoverable by enactment;

(3)  Section 35: Actions for recovery of land; and

(4)  Section 37: Specified actions relating to equity jurisdiction.

92.  The jurisdiction conferred by section 32 of the DCO is, prima facie, established in relation to the female passenger as a tortfeasor due to the type of potential claim against her (being a claim in tort), but is it established in relation to the Defendant, who is merely an innocent third-party? In my judgment the answer is no.

93.  The present application has been made in stand-alone DCMP proceedings, but which purports to be related to a potential personal injury case in which this Court’s jurisdiction would, if commenced, be engaged and established. These proceedings, which have been brought against the Defendant, do not fall into any of the primary jurisdiction conferring provisions in sections 32, 33, 35 and 37 of the DCO. In the present case, and in relation to the Defendant, the District Court’s primary jurisdiction is simply not established or engaged.

94.  In the premises the Plaintiff is unable to rely on section 48 (or section 52) as conferring the necessary jurisdiction or power on this Court to grant the Norwich Pharmacal order that she seeks.

95.  This conclusion finds support in the judgment of His Honour Judge Lok (as he then was) in John Arthur Wright v Hampton Winter & Glynn & Another, DCMP 3233/2007 (unreported, 20 November 2007). In that case, the court was presented with an application by the plaintiff for an injunction to restrain the defendants (a firm and an individual solicitor) from continuing to act as the solicitors for the plaintiff’s wife in the related matrimonial proceedings in the Family Division of the District Court. The application was based on claims of breach of fiduciary duty and possible conflict of interest under the professional code of conduct for solicitors. The application was not brought in the primary matrimonial proceedings but was brought in a separate DCMP action.

96.  The plaintiff sought to rely on, inter alia, section 52 of the DCO as providing statutory power to grant the injunction sought.

97.  The learned Judge reiterated that sections 48 and 52 of the DCO only provide ancillary jurisdiction to the District Court to make various kinds of orders once the jurisdiction to hear a particular case has been established.

98.  Notwithstanding that the application and proceedings before him were related to matrimonial proceedings in the Family Division of the District Court (in which the District Court’s jurisdiction would, unquestionably, have been established), the learned Judge held that that the claim before him did not fall into any of the primary jurisdiction conferring provisions of the DCO. Therefore, the plaintiff could not invoke section 52 of the DCO. 

99.  Notwithstanding my efforts, I have been unable to identify any legislation which expressly confers the jurisdiction, or power, on this Court to grant the Plaintiff the Norwich Pharmacal order that she seeks.

Does the power arise by implication?

100.  As the power is not expressly provided to the District Court by statute, the question then is, whether such power can be said to exist by implication, in the manner prescribed by the Court of Final Appeal in PCCW-HKT Telephone Ltd. Specifically, is such a power necessary in the sense of “reasonably required” for the effective exercise of the statutory jurisdiction expressly conferred on this Court?

101.  In my judgment, the power to grant Norwich Pharmacal relief, is a power which I consider as derivable by statutory implication, and which is reasonably required for the effective exercise of jurisdiction expressly conferred on this Court, in this case, by section 32 of the DCO.

102.  A party may have a legitimate claim which engages and falls within the jurisdiction of the District Court under section 32, 33, 35 or 37 of the DCO. Without the ability to apply for a Norwich Pharmacal order, that party’s ability to commence and/or formulate a claim under those sections may be fettered, potentially resulting in that party being denied the justice to which they may be entitled.  Such fetters may, for example, come in the form of not knowing the identity of potential defendants and/or not knowing the recipient(s) of funds or assets over which the plaintiff asserts an entitlement or claim.

103.  Therefore, without the power to grant Norwich Pharmacal relief, it could be said that the District Court may be denied the ability to exercise the jurisdiction conferred upon it by sections 32, 33, 35 and 37 effectively or, in some instances, at all. 

104.  To be clear, it is my view that, unlike the Court of First Instance, the District Court does not possess any inherent jurisdiction to grant Norwich Pharmacal relief. In my judgment, I have found that this Court possesses an implied power to grant Norwich Pharmacal relief. Such power arises by way of implication from the jurisdiction expressly conferred on the District Court by sections 32, 33, 35 and 37 of the DCO.

105.  Being satisfied that this Court possess the necessary power to entertain the Plaintiff’s present application, I now turn to consider if the discretion to grant the order sought should be exercised.

Exercise of the discretion

106.  Having considered the present application and the evidence placed before me, I am not satisfied that my discretion should be exercised.

107.  By a letter dated 14 June 2022, the solicitors for the Plaintiff wrote to the Defendant seeking the disclosure of personal particulars of two passengers and a flight attendant in the employ of the Defendant.

108.  In the aforementioned letter, the incident which allegedly took place on 5 June 2022 was described as follows:-

“We are instructed that our client, a passenger on board a flight number CX851 operated by you on 5^th June 2022, sustained injuries to her head and neck when she was hit by a hand-on [sic] baggage which fell from the overhead locker at or near seat number 74C before the aeroplane took off in San Francisco en route to Hong Kong.

We are instructed that the accident was caused by the negligence of two passengers of [sic] the same flight and/or a flight attendant when they were lifting the hand-on [sic] baggage into/out of the overhead locker.” (emphasis added)

109.  The account given in the aforementioned letter is at odds with what has been deposed to by the Plaintiff in her supporting affirmation, wherein she mentions only one female passenger.

110.  At §4 of her 1^st Affirmation, the Plaintiff states:-

“Apparently, the baggage had been dislodged from the overhead locker by a female passenger attempting to stow it into the locker.” (emphasis added)

111.  At §6 of the same affirmation, the Plaintiff goes on to state:-

“I believe the accident was caused by the negligence of the female passenger. Had she properly handled and lifted the baggage, it would not have fallen onto me.” (emphasis added)

112.  Nowhere in her evidence does the Plaintiff describe a second female passenger. Nowhere in the OS does the Plaintiff seek the disclosure of information against both of the female passengers that she had previously alleged were liable to her in negligence.

113.  The order sought by the Plaintiff in her OS seeks disclosure of the personal information of “a female passenger who caused a piece of hand-on baggage to fall on the head of the Plaintiff on board flight no. CX851”. Again, the Plaintiff makes reference to only one female passenger whom she describes as the individual that caused the baggage to fall on her head.

114.  By a letter dated 21 March 2025, the solicitors for the Defendant wrote to the Plaintiff in relation to the present application. By that time the OS had already been filed together with the Plaintiff’s 1^st Affirmation.  In the penultimate paragraph of that letter, the Defendant’s solicitors stated:-

“it is relevant to note that our client has identified two passengers who were seemingly involved in your client’s accident. However, our client is not able to ascertain which of the two passengers (if either of them were in fact involved) allegedly caused the bag to drop on your client. In addition, it should be noted that both of those passengers were minors (i.e. below 18 years of age) at the time of the accident.” (emphasis added)

115.  The reference to “two passengers” in the aforementioned letter accords with the account of events set out by the Plaintiff’s solicitors in their letter of 14 June 2022. It does not, however, accord with the Plaintiff’s own evidence or with the order sought in the OS.

116.  In light of the foregoing, I do not see how the Defendant would be able to reasonably comply with any order in terms which may be made by this Court.

117.  If this Court were to grant the order sought by the Plaintiff, the Defendant would find itself in an impossible position, completely unable to discern which of the female passengers the order refers. The imprecision of the order sought in the OS is, in my view, fatal to the Plaintiff’s application.

118.  In the premises, it would be wholly inappropriate to grant the Plaintiff the Norwich Pharmacal order she seeks, and I decline to do so.

Conclusion

119.  For the reasons set out in this judgment, I dismiss the OS and order that the Defendant’s costs in this application be paid by the Plaintiff on an indemnity basis (as is usual in such cases), to be taxed if not agreed.