Chan Shu Moon v. Director of Buildings

DCMP 2408/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2408 OF 2016

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JUDGMENT

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INTRODUCTION

1.By the originating summons herein, the plaintiff seeks an order to compel the defendant to disclose the investigation report prepared by (“the Report”) and the witness statements taken by the defendant (“the Statements”) in relation to the incident happened on 17 November 2014 in which the plaintiff fell into a deep hole that opened up suddenly outside Ngan Lung Restaurant at Jardine Bazaar (“the Incident”).  The plaintiff also seeks a costs order against the defendant.

2.The plaintiff says that he needs those documents to identify the wrongdoers in relation to the Incident, so that he can make civil claims against those wrongdoers.  He is prepared to offer the following undertaking (“P’s Undertaking”) in support of his application:-

“Unless with prior written consent of the defendant or pursuant to the leave of the court, the documents disclosed by the defendant in compliance with this order shall be used solely for identifying the wrongdoers and bringing proceedings against such wrongdoers in relation to the Incident, and the said documents shall only be accessible by the parties to the plaintiff’s intended civil claims in relation to the Incident, their legal representatives and expert witnesses, and shall not be disclosed to any person who is not a party thereof.”

3.The plaintiff says that the basis of his application is section 47B(2) of the District Court Ordinance (Cap 336) (“DCO”) and the common law Norwich Pharmacal principle.

4.The defendant is prepared to disclose to the plaintiff some of the documents requested, but has reservation in disclosing the other documents.  The defendant submits that costs of these proceedings should be provided by the plaintiff.

THE FACTS

5.According to the plaintiff, the Incident occurred at about 9:12 am on 17 November 2014.

6.On 10 December 2014, the plaintiff’s solicitors wrote to the defendant to request for a copy of the Report and the Statements.  On 12 December 2014, the defendant replied and said that the matter was receiving attention and the plaintiff’s solicitors would be advised of the outcome in due course.

7.On 6 January 2015, the plaintiff’s solicitors wrote to the defendant to follow up the matter.  On 7 January 2015, the defendant replied and said that the matter was receiving attention.

8.On 19 January 2015, the defendant wrote to the plaintiff’s solicitors informing them that the investigation of the Incident was carried out by the defendant and the Geotechnical Engineering Office of Civil Engineering and Development Department and it was anticipated a certain period of time would be required for completing the Report.  As such, the plaintiff’s solicitors’ request could not be entertained at that moment but the defendant would follow up the matter at an appropriate time.

9.On 22 January 2015, the plaintiff’s solicitors wrote to the defendant and asked for the specific period of time required for completing the Report. On 26 February 2015, the defendant replied and said that as the investigation would involve questions concerning complicated underground soil conditions, the investigation and the exercise of taking statements would take a few months to complete.

10.On 16 April 2015, the plaintiff’s solicitors wrote to the defendant and asked when the Report would be available, as the plaintiff was eager to commence proceedings to recover damages.  On 15 May 2015, the defendant replied and stated that the investigation might result in proceedings and drew the plaintiff’s solicitors’ attention to section 2.6 of the Code on Access of Information published by the Constitutional and Mainland Affairs Bureau in February 2009 (“the Code”), which provided that request for disclosure of information might be refused if the disclosure of the information might harm or prejudice the administration of justice.

11.From May 2015 to September 2015, the plaintiff’s solicitors repeatedly wrote to the defendant to try to persuade the defendant that section 2.6 of the Code would not be a reason for refusing the plaintiff’s request.  The defendant’s position remained unchanged.

12.On 20 November 2015, the plaintiff’s solicitors wrote to the defendant to urge the defendant to give a reply.  On 1 December 2015, the plaintiff’s solicitors wrote again to chase for a reply.  On that same date, the defendant replied and said that they were seeking advice from the Department of Justice. On 8 December 2015, the plaintiff’s solicitors wrote to the defendant and asked when they would expect to have the advice from the Department of Justice, and the plaintiff’s solicitors also requested the defendant to inform them the outcome within 7 days after obtaining the advice from the Department of Justice.

13.The substantive reply was given by the defendant on 1 February 2016, in which the defendant mentioned that as a result of the legal advice from the Department of Justice, they had instigated prosecution action.  On 2 February 2016, the plaintiff’s solicitors wrote to the defendant and complained that notwithstanding that they had already obtained advice from the Department of Justice, they still refused to disclose the Report and the Statements to the plaintiff.  On 22 March 2016, the plaintiff’s solicitors again wrote to the defendant to urge them to disclose the documents.

14.On 23 May 2016, the defendant replied and refused to provide the documents to the plaintiff.  The defendant said the Report and the Statements were “related to investigations for the purpose of consideration for taking enforcement/legal action under the Building Ordinance which have resulted in proceedings.”  The defendant referred to paragraph 2.6(c) and Part 2 of the Code.

15.On 29 July 2016, the plaintiff’s solicitors wrote to the defendant requesting for (a) whether any proceedings, either civil or criminal, had been commenced in relation to the Incident; and (b) if yes, the case number of those proceedings.

16.On 8 August 2016, the plaintiff commenced the proceedings herein.

17.On 9 August 2016, the defendant wrote to the plaintiff’s solicitors, providing them the case numbers of the criminal proceedings in relation to the Incident.  The defendant also said that the pre-trial review hearing in those criminal proceedings had been re-fixed and would take place on 20 February 2017.

18.According to the defendant:-

(a) the Report was completed in early August 2015.  After some further internal discussion and analysis, the Report was sent to the Department of Justice for advice, and the Department of Justice rendered the advice on 12 November 2015.  As a result of the advice, criminal proceedings were commenced on 17 November 2015;

(b) from November to December 2016, the defendant has made enquiries with various third parties in respect of disclosing certain appendices to the Report (ie appendices II to IX, XI, XIV, XV, XVIII and XIX) to the plaintiff.  Those appendices were prepared by and/or created by these third parties.  These third parties objected disclosure of the same to the plaintiff on the basis of ownership of copyright (“the Copyright Objection”).

DCO, s 47B(2) NOT APPLICABLE

19.DCO s 47B provides:-

“(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 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.

......” (Emphasis added)

20.Plainly, “the person” in subsection (2) can only be “a person who is not a party to the proceedings” in subsection (1).  The plaintiff is seeking a disclosure order against the defendant herein, who is a party to these proceedings.  Obviously, DCO s 47B(2) cannot be the basis of this application.

NORWICH PHARMACAL PRINCIPLE

21.Both the plaintiff and the defendant agree that this court has jurisdiction to hear and determine the plaintiff’s application under the principle laid down by the House of Lords in Norwich Pharmacal Co & Others v Customs and Excise Commissioners [1974] AC 133.

22.I agree that the Norwich Pharmacal principle is applicable.  In considering the plaintiff’s application, I bear in mind the reminder issued by Ma J (as he then was) in A Co v B Co [2002] 3 HKLRD 111, in which His Lordship emphasised the extraordinary nature and characteristics of the Norwich Pharamacal relief at paras. 12 and 13 of that judgment, which includes the following:-

(a) The court must, in its discretion, balance the competing interests of the victim of the alleged wrongdoing and an innocent party caught up in the wrongdoing;

(b) The discovery sought must not be unduly wide.  There is no entitlement to general discovery.  It is important that the discovery, whether wide or narrow, is necessary.

THE DEFENDANT’S POSITION

23.Miss Vienne Luk for the defendant, in her skeleton submissions, states the following position:-

“17. ...... [the defendant agrees] to waive its claim of legal professional privilege over [the Report] and the Geotechnical Investigation Report [which is appendix XIII to the Report] subject to the redaction of paragraphs 6.9 to 6.71 of [the Report] which contain privileged information on the possible criminal prosecutions against various persons and the redaction of irrelevant information, irrelevant personal data and other information or documents obtained from third parties.

......

19. ...... subject to the redaction of irrelevant information, irrelevant personal data, any matter covered by legal professional privilege and other information or documents obtained from third parties, [the defendant] is prepared to disclose Appendices I, X, XII, XVI, XVII and XX upon satisfactory undertaking by the Plaintiff on the preservation of confidentiality and limited use of the said documents.

20. As regards Appendices II to IX, XI, XIV, XV, XVIII and XIX, they were prepared and/or created by third parties or contain information or documents from third parties who objected disclosure of the same to the Plaintiff mainly on the basis of ownership of copyright. Although the Defendant is of the view that the relevant exemptions under sections 54(1), 56, 57 and/or 59 of the Copyright Ordinance, Cap. 528 would apply, given the strong objections by those third parties, it is reasonable for the Defendant to require an order from the court before disclosure of the aforesaid appendices.

21. As regards the email dated 6 August 2015 from GEO under Appendix XXI which contains analysis on the responsibilities of the personnel concerned for the dominant purpose of seeking legal advice in contemplation of possible criminal prosecutions, similar to the proposed redaction of paragraphs 6.9 to 6.71 of [the Report], the Defendant objects to the disclosure of the same on the ground of legal professional privilege.

............

22. Upon satisfactory undertaking by the Plaintiff on the preservation of confidentiality and limited use of the documents, the Defendant is prepared to disclose the cautioned statements and witness statements taken during the course of investigations, subject to the redaction of irrelevant information, irrelevant personal data and any matter covered by legal professional privilege. If the court orders disclosure of the relevant information and documents prepared and/or created by third parties, the Defendant will not redact any such information from the said statements.

23. As regards the Appendix to the Witness Statement of Mr. CHONG Chiu Ming dated 17 December 2015 which mainly contains comments from the Highways Department on the investigation report submitted by the Authorized Person, the disclosure of which was objected to by the Authorized Person, it is reasonable for the Defendant to require an order from the court before disclosure of the same.”

24.As to the proposed redaction of irrelevant information, irrelevant personal data and other information or documents obtained from third parties, the defendant does not have a strong view on this.

25.Further, in respect of the appendix to the witness statement of Wong Chiu Ming dated 17 December 2015, the defendant also does not have a strong view on the same.  The concern of the defendant on this is there is an objection raised by a third party in respect of disclosure of this document, and the defendant would need a protection of a court order in disclosing this document to the plaintiff.

26.The defendant’s main objection is that the defendant claims legal professional privilege in relation to paragraphs 6.9 to 6.71 of and appendix XXI to the Report (“the LPP Claim”).

AMBIT OF DISCLOSURE

27.The Incident occurred on 17 November 2014.  Subject to the exceptions provided in the Limitation Ordinance (Cap 347), the plaintiff has to commence proceedings against the wrongdoers to recover damages for the personal injuries suffered by him in the Incident within 3 years from 17 November 2014.  By now, more than 2 years have lapsed.  Even if the plaintiff can obtain some documents from the defendant, the plaintiff has to take some time to peruse the documents and to conduct enquiries and investigation in order to find out the wrongdoers.  With all these in mind, there is urgency in this disclosure application.

28.I agree with the defendant that in light of the provisions of the Copyright Ordinance cited by the defendant, the Copyright Objection is not a valid objection to the disclosure requested by the plaintiff.  However, as a result of the Copyright Objection raised by various third parties, it is reasonable for the defendant to obtain a court order for disclosure.

29.As to the redaction of irrelevant information, irrelevant personal data and other information or documents obtained from third parties, although the defendant proposes the redaction, save and except the parts covered by the LPP Claim, the defendant does not have a strong view on this.  The purpose of the plaintiff in seeking the disclosure is to obtain documents from the defendant to identify the wrongdoers in relation to the Incident.  I appreciate that whether a piece of information is relevant to this purpose can be a controversial issue between the parties.  Bearing in mind that there is urgency in the plaintiff’s request for documents, with a view of minimizing the arguments between the parties, save and except the parts covered by the LPP Claim, I am prepared to order disclosure without the redaction proposed by the defendant.  With the undertaking offered by the plaintiff, I am of the view that the documents disclosed to the plaintiff and the information therein would not be misused by the plaintiff.

30.I now come to the LPP Claim made by the defendant.  I do not have the opportunity to see those parts of the documents in respect of which the defendant claims legal professional privilege.  It would not be easy to determine the LPP Claim today.  Having considered the matter, I decided to adopt a practical approach.  I allow the defendant to redact the parts in respect of which they claim legal professional privilege, but I would give the parties liberty to apply.  I note that even with this redaction, the documents to be disclosed by the defendant to the plaintiff are still voluminous.  The information therein may already be sufficient for the purpose of enabling the plaintiff to identify the wrongdoers in relation to the Incident.  It would be desirable to let the plaintiff have the documents as soon as possible.  If after perusing the documents, the plaintiff says that it would be necessary to see the redacted parts, the plaintiff may come back to this court and apply for a further order.  I will hear the parties and determine the LPP Claim there and then.

31.The ambit of the disclosure therefore would be the Report and the Statements, save and except the parts covered by the LPP Claim.

COSTS

32.In a Norwich Pharmacal application, the general rule is that costs are paid by the applicant seeking the disclosure to the party against whom a Norwich Pharmacal relief is sought.  In Totalise plc v The Motley Fool Ltd [2002] 1 WLR 1233, the English Court of Appeal said:-

“29. ...... Norwich Pharmacal applications are not ordinary adversarial proceedings, where the general rule is that the unsuccessful party pays the costs of the successful party. They are akin to proceedings for pre-action disclosure where costs are governed by CPR r 48.3. That rule, we believe, reflects the just outcome and is consistent with the views of Lord Reid and Lord Cross in the Norwich Pharmacal case [1974] AC 133 , 176, 199. In general, the costs incurred should be recovered from the wrongdoer rather than from an innocent party. That should be the result, even if such a party writes a letter to the applicant asking him to draw to the court's attention to matters which might influence a court to refuse the application. Of course such a letter would need to be drawn to the attention of the court. Each case will depend on its facts and in some cases it may be appropriate for the party from whom disclosure is sought to appear in court to assist. In such a case he should not be prejudiced by being ordered to pay costs.

30. The court when considering its order as to costs after a successful Norwich Pharmacal application should consider all the circumstances. In a normal case the applicant should be ordered to pay the costs of the party making the disclosure including the costs of making the disclosure. There may be cases where the circumstances require a different order, but we do not believe they include cases where: (a) the party required to make the disclosure had a genuine doubt that the person seeking the disclosure was entitled to it; (b) the party was under an appropriate legal obligation not to reveal the information, or where the legal position was not clear, or the party had a reasonable doubt as to the obligations; or (c) the party could be subject to proceedings if disclosure was voluntary; or (d) the party would or might suffer damage by voluntarily giving the disclosure; or (e) the disclosure would or might infringe a legitimate interest of another.” (Emphasis added)

Applied by HH Judge Simon Leung in Able Force Freight Ltd v East Sun Estate Management Ltd [2010] 2 HKLRD 1155

33.The plaintiff submits that notwithstanding this general rule, costs of this application should be paid by the defendant to the plaintiff, for the reason that “the defendant has unreasonably refused repeated requests, contested the application strenuously with an invented excuse even after it has been duly informed of the correct legal position and provision of the relevant cases”.  The plaintiff relies upon Chan Chuen Ping v Commissioner of Police (HCMP 2741/2013, 19 November 2013).

34.I would not depart from the general rule as to costs.  After the Incident, no doubt the defendant would need some time to finish the Report and to take the Statements.  The Report was finished in August 2015.  Based upon the findings in the Report, the defendant sought advice from the Department of Justice.  At one stage, the defendant claimed legal professional privilege in relation to all the documents sought by the plaintiff.  Mr Patrick Yeung for the plaintiff, in his second affirmation, expressly challenged the truthfulness of the defendant’s saying that the Report was prepared for the purpose of obtaining legal advice.  In my judgment, there is no sufficient basis in support of this challenge.

35.It is not unreasonable that the defendant at one time had a view that the documents sought by the plaintiff were covered by the legal professional privilege. In fact, whether the documents are covered by legal professional privilege may not be an easy question.  Further, I also bear in mind the Copyright Objection raised by various third parties.  It is understandable that facing these objections, the defendant would like to have the protection of a court order. In these circumstances, I am of the view that the general rule as to costs in this kind of applications should apply.

36.The Chan Chuen Ping case does not lay down any new rule as to costs in Norwich Pharmacal applications and is limited to its own facts.  With respect to Mr Yeung, I do not think that case can be applied here.

37.Although the plaintiff has to pay costs of this application to the defendant, in accordance with the general rule, the plaintiff may recover those costs in the subsequent proceedings against the wrongdoers in relation to the Incident.

IRREGULARITIES IN THE PROCEEDINGS

Failure to pay attention to the fact that the hearing of the originating summons is in open court

38.Order 28 rule 3A of the Rules of the District Court provides that an originating summons must be heard in open court unless the court directs otherwise.  In the originating summons herein, it is expressly stated that the originating summons is to be heard in open court.  In the daily cause list of the court, it is expressly stated that the hearing today is in open court. With respect to Mr Yeung and Miss Luk, notwithstanding all these express provisions, both Mr Yeung and Miss Luk have forgotten to wear solicitors’ gowns today.  In order not to waste the precious time of the court, I give an exemption to Mr Yeung and Miss Luk today.  However, I have reminded Mr Yeung and Miss Luk that this should not happened in my court again.  In fact, this should not happen in any court.

39.Practitioners should pay attention to the fact that a hearing is in open court or in chamber, and dress properly accordingly.

No Submissions in affidavit or affirmation

40.I also take this opportunity to remind practitioners that an affidavit or affirmation should contain evidence and not submissions.  It is improper and incorrect to make legal submissions in an affidavit or affirmation.  If a party ignores this requirement and puts submissions in an affidavit or affirmation, the costs of preparation of that affidavit or affirmation may be disallowed.

41.I note that in the 2 affirmations made by Mr Yeung in these proceedings, some parts of those affirmations are submissions and not evidence.  I am not prepared to take any action this time.  However, the plaintiff’s solicitors are reminded not to do this again in future in these proceedings (if there is any further development in these proceedings).

CONCLUSION

42.For the reasons above, upon P’s Undertaking, I make the following order:-

(a) the defendant shall disclose the following documents to the plaintiff within 7 days:-

(i) The Report and the appendices thereto, save and except paragraphs 6.9 to 6.71 of and appendix XXI to the Report; and

(ii) the witness statements identified in paragraphs 26 and 28 of the Affirmation of Wong Chiu Yeung filed on 18 October 2016, including the appendices to those statements;

(b) there be liberty to apply;

(c) costs of this application (including costs reserved) be paid by the plaintiff to the defendant, to be taxed if not agreed.

43.Last but not the least, I am grateful to Mr Yeung and Miss Luk for their helpful assistance provided to this court.

Mr Patrick Yeung, of Holman Fenwick Willan, for the plaintiff

Ms Vienne Luk GC, of the Department of Justice, for the defendant