Leung Yiu Ting v. Mtr Corporation Ltd

HCMP 1441/2019

[2019] HKCFI 2321

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1441 OF 2019

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DECISION

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INTRODUCTION

1.The Plaintiff claims to be the victim of an assault and wrongful and/or unlawful arrest by police officers which occurred during the course of a police operation in the evening of 31 August 2019 at Prince Edward Station.  According to the Plaintiff, he was arrested for the offence of unlawful assembly at around 00:17 am on 1 September 2019 in Prince Edward Station, and later taken to Lai Chi Kok Station, and then to Kwai Chung Police Station.  The Plaintiff was eventually released unconditionally by the police at around 11:00 pm on 2 September 2019, having been admitted to Princess Margaret Hospital between 4:00 pm on 1 September 2019 and 9:00 pm on 2 September 2019.

2.The Plaintiff states that he intends to bring a claim against the Commissioner of Police for personal injuries and loss and damage arising from the alleged assault and wrongful and/or unlawful arrest, and now applies for the following orders or relief against MTR Corporation Limited (“MTRC”):

(1)  an order for the disclosure to his legal advisers, Messrs Ho Tse Wai & Partners (“HTW”), of all close-circuit television footages recorded at Prince Edward Station from 9:45 pm on 31 August 2019 to 1:45 am on 1 September 2019, and at Lai Chi Kok Station from 12:30 am on 1 September 2019 to 2:00 am on 1 September 2019 (“the CCTV Footages”), with liberty to HTW to inspect and take copies of the same (“the Disclosure Application”); and

(2)  an order that, pending the determination of the Disclosure Application, MTRC:

(a)  do preserve in its safe custody the CCTV Footages; and

(b)  be restrained from meddling with, editing, erasing, destroying or otherwise disposing of any part of the CCTV Footages (“the Interim Relief Application”).

THE DISCLOSURE APPLICATION

3.The Disclosure Application is made by way of an Originating Summons dated 9 September 2019 in Form No 10 (ie the short, or expedited, form) in Appendix A to the Rules of the High Court, Cap 4A (“the Rules”).  The Originating Summons refers to both (i) Section 42 of the High Court Ordinance, Cap 4 (“the Ordinance”) and Order 24, rule 7A of the Rules, and (ii) the inherent jurisdiction of the court, as the bases of the application.

4.Section 42 of the Ordinance, so far as relevant, states as follows:

“(1) On the application, in accordance with rules of court, of a party to any proceedings in which a claim is made, the Court of First Instance shall, in such circumstances as may be specified in the rules, have power to order a person who is not a party to the proceedings and who appears to the Court of First Instance to be likely to have or to have had in his possession, custody or power any documents which are relevant to an issue arising out of that claim –

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

(b) to produce such of those documents as are in his possession, custody or power to the applicant or, on such conditions as may be specified in the order –

(i) to the applicant’s legal advisers;

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

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

(2) On the application, in accordance with rules of court, of a party to any such proceedings as are referred to in subsection (1), the Court of First Instance shall, in such circumstances as may be specified in the rules, have power to make an order providing for any one or more of the following matters -

(a) the inspection, photographing, preservation, custody and detention of property which is not the property of, or in the possession of, any 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 any such property as is mentioned in paragraph (a) and the carrying out of any experiment on or with any such property.

(3)  Subsections (1) and (2) are without prejudice to the exercise by the Court of First Instance of any power to make orders which is exercisable apart from those provisions.”

5.Order 24, rule 7A of the Rules provides the machinery for making an application under, inter alia, Section 42 of the Ordinance.  In particular, Rule 7A(2) states as follows:

“An application after the commencement of proceedings for an order under section 42(1) of the Ordinance for the 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.”

6.Section 42 of the Ordinance enables an application to be made by a party to any proceedings to seek, from a non-party, discovery of “documents” which are relevant to an issue arising out of a claim made in those proceedings, and also inspection, photographing, preservation, custody and detention of “property” which is the subject matter of the proceedings or as to which any question arises in the proceedings.  In order to invoke the court’s jurisdiction under Section 42 of the Ordinance, it is essential that there be existing proceedings to which the applicant is a party.  This requirement is clear from:

(1)  the wording of Section 42(1), namely: “On the application, in accordance with rules of court, of a party to any proceedings in which a claim is made …”, and

(2)  the wording of Section 42(2), namely: “On the application, in accordance with rules of court, of a party to any such proceedings as are referred to in subsection (1) …” [emphasis added].

7.That a person must be a party to some existing proceedings before he can make an application under Section 42 of the Ordinance is also clear from Order 24, rule 7A(2), which provides that such application shall be made by summons in those proceedings and the summons must be served on the person against whom the relevant order is sought personally and on every party to the proceedings other than the applicant.  This is to be contrasted with an application for “pre-action” discovery of documents under Section 41 of the Ordinance, which Order 24, rule 7A(1) expressly provides shall be made by “originating summons (in Form No. 10 in Appendix A)”.  This makes perfect sense because in the case of an application for “pre-action” discovery, there is, by definition, no existing proceedings in which a summons can be taken out for the purpose of making the application, and thus an originating process is required to initiate the application.

8.Mr Anthony Cheung, on behalf of the Plaintiff, has referred me to the decision of Deputy High Court Judge Seagroatt in Chan Chuen Ping v Commissioner of Police [2014] 1 HKLRD 142 at [12] – [15], in which the learned judge expressed the view that Section 42 was capable of being construed, by implication, to apply to both existing and contemplated proceedings:

“[12] There is of course under section 41 of the High Court Ordinance a provision whereby an applicant who ‘appears … to be likely to be a party to subsequent proceedings … in which a claim is likely to be made’ may obtain an order for disclosure of documents before commencement of proceedings against ‘a person who appears to the court … to be likely to be a party to the proceedings …’. The Commissioner of Police or the Department of Justice are not however likely to be a party to any proceedings by this applicant (at least not in the current circumstances) and so section 41 does not apply.

[13] Therefore it is necessary, as far as the efficacy of resorting to the High Court is concerned, to consider section 42. By this provision ‘a party to any proceedings in which a claim is made’ may obtain an order against ‘a person who is not a party to the proceedings and who appears to the court … to be likely to have … in his possession, custody or power any documents which are relevant to an issue arising out of that claim.’ Such documents would not of course be limited to that identifying the potential tortfeasor.

[14] The terminology predicates the applicant as having commenced proceedings but this applicant has not. But the applicant cannot commence proceedings because the Police Commissioner refuses to let him have the name (and address, which is also essential) of the person against whom the proceedings can be commenced. But the court has an inherent jurisdiction to do what is fair and just and would not send an applicant in such circumstances away empty-handed and section 42 is capable of the 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’ in order to remedy the situation whereby that person is withholding the very information which would enable proceedings to come into existence. Furthermore, and this is of signal importance especially in today’s climate of litigation, the courts encourage settlement of such claims where reasonable settlements can be achieved, and disclosure of material is a vital ingredient in such a climate. There is yet another aspect of importance. Although an injury results from such an incident it may not be one that justifies proceedings being taken, either on the merits, or the value, or the general economic considerations. Courts and the legal profession have a collective interest in ensuring that there is every opportunity to evaluate such a claim. But if an institution which is founded for and holds itself out to be for the benefit of the public, withholds basic, essential information, how can any of those objectives be attained?

[15] The residual power of implication and the inherent jurisdiction I referred earlier finds confirmation in subsection (3) of section 42 – ‘Subsections (1) and (2) are without prejudice to the exercise by the court … of any power to make orders which is exercisable apart from those provisions.’”

9.It can be seen that the learned judge decided to give Section 42 a wide construction to apply to both existing and contemplated proceedings because, it was said, the court had an inherent jurisdiction to do what was fair and just, and in order to encourage settlement of claims where reasonable settlements can be achieved, particularly in relation to claims which might not justify proceedings being taken.

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.  In this regard, I agree with the views of Bharwaney J expressed in Chan Yim Wah Wallace v New World First Ferry Services Limited, HCPI 820/2013 (unreported, 8 May 2015), at [23], in relation to the scope of Section 42:

“Applications under s.42 and O.24 r.7A(2) are made, in proceedings which have already been commenced, for discovery of documents by a person who was not a party to the proceedings, and who appears to the court to be likely to have in his possession, custody or power documents that are relevant to an issue arising out of the claim made in those proceedings. In Chan Chuen Ping v The Commissioner of Police, the applicant could not commence any proceedings as he had no knowledge of the identity of the wrongdoer. Moved by his predicament, Deputy High Court Judge Seagroatt construed s.42 in these terms:

‘The terminology predicates the applicant as having commenced proceedings but this applicant has not. But the applicant cannot commence proceedings because the Police Commissioner refuses to let him have the name (and address, which is also essential) of the person against whom the proceedings can be commenced. But the court has an inherent jurisdiction to do what is fair and just and would not send an applicant in such circumstances away empty-handed and section 42 is capable of the 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’ in order to remedy the situation whereby that person is withholding the very information which would enable proceedings to come into existence.’

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.”

11.Since the Plaintiff is not a party to any existing proceedings, Section 42 of the Ordinance has no application in the present case.  To be fair to Mr Cheung, although there is reference to Section 42 of the Ordinance in both the Originating Summons and in his Skeleton Arguments dated 11 September 2019, he confirmed at the hearing that he would not be relying on Section 42 of the Ordinance, but would rely solely on the court’s power to make a Norwich Pharmacal order as the basis of the Disclosure Application.

12.In so far as the Disclosure Application is based on the court’s equitable jurisdiction to make a Norwich Pharmacal order, the initial question arises as to whether the application ought to have been made by way of an originating summons in Form No 8 (ie the long form), instead of Form No 10 (ie the short, or expedited, form).  Order 7, rule 2 of the Rules states as follows:

“(1) Every originating summons (other than an ex parte summons) shall be in Form No. 8 or, if so authorized or required, in Form No. 10 in Appendix A, and every ex parte originating summons shall be in Form No. 11 in Appendix A.

(2) Form No. 8 in Appendix A is to be used in all cases except where another form is prescribed under a written law or there is no party on whom the summons is to be served.

(3) Form No. 10 in Appendix A is to be used if it is prescribed under a written law.”

13.It seems to me to be clear that, in the case of an inter-partes originating summons, Form No 10 should be used unless the use of Form No 8 is “authorized or required”.  In Hong Kong Ping Jeng Lau Co v Incorporated Owners of United Centre [1990] 1 HKC 178, Godfrey J (as he then was) stated that word “authorised” would apply to any rule which permitted the use of the expedited form and the word “required” would apply to any rule which mandated the use of the expedited form.  The learned judge further stated that the use of an incorrect form of the originating summons was a material irregularity:

“In the present case there was, as it seems to me, clearly an irregularity; for no rule permits or mandates the use of the expedited form. And the irregularity is material because, when the expedited form is used, the time for the defendant to file evidence is cut down. That is the whole purpose of the expedited form. It is improper to use it in an ordinary case to defeat the rule which provides a time-table for the filing of evidence, allowing a more generous time to the defendant for that purpose than he would have where the expedited form is used: see 0.28 of the Rules of the Supreme Court, and, in particular, 0.28, r.l(a). Under rule 1(a), which applies to the ordinary case, the plaintiff has up to 14 days, after service has been acknowledged by the defendant, for the filing of his evidence; and the defendant has 28 days, after service on him of the plaintiff's affidavit evidence, to file his own affidavit evidence. The plaintiff's time for reply is 14 days thereafter. No other evidence is to be received without the leave of the court. It is of course always possible for the court to vary that time-table on application, so as to cut down the amount of time made available by the rule for the purpose of filing evidence; and that is the correct course open to a party who wishes to bring the matter on for hearing sooner than would otherwise be the case.”

14.In Talent Hope Ltd v Magnificent Estates Ltd [1995] 3 HKC 593, Waung J also made it clear that the use of the correct form of an originating summons is not a mere matter of formality, but carried significant procedural consequences.  At 596G-597B of the law report, the learned judge stated the following:

“Before I proceed to consider how my discretion should be exercised, it is worthwhile reminding myself that once the plaintiff concedes it is not entitled to rely on s 12 or on the short form, I am really dealing with an ordinary case where a party has chosen to initiate proceeding by originating summons. The question is should the plaintiff be put into a special position by being permitted to have a hearing take place at a very much accelerated pace, [as] sought to be achieved by the court abridging the various time limits under the rules. Order 28 provides a detailed timetable and procedure for the process under an originating summons. Order 12 r 9 gives 14 days for the acknowledgement of service of an originating summons. Under r 1A, there is a timetable for the filing of evidence: 14 days for the plaintiff’s initial affidavit evidence, 28 days for the defendant to file an affidavit in answer and 14 days for the plaintiff’s affidavit-in-reply. There is time limit laid down in r 2 for appointment for the hearing of the originating summons.”

15.Mr Cheung accepts that there is no rule which either authorises or requires the use of the expedited form (Form No 8) of an originating summons for making an application for a Norwich Pharmacal order.  It would seem, therefore, that the Disclosure Application ought to have been made using the long form (Form No 10).  Mr Cheung has, however, referred me to the decision of Ma J (as he then was) in A v B [2002] 3 HKLRD 111, at [3], where the learned judge stated, in relation to the application for a Norwich Pharmacal order before him which was made in Form No 8, that “it would have been more appropriate, given the nature of the relief sought, to have used the expedited form (Form No 10)”.  It is not clear from the law report whether the point was argued before Ma J.  This is not the occasion to resolve the question of whether, strictly speaking, Form No 10 should be used for making an application for a Norwich Pharmacal order.  In view of the fact that the parties before me are agreed that directions should be given for the filing of evidence and the hearing of the Originating Summons should be adjourned to a date be fixed for substantive argument, I am content to proceed on the basis that, if there was an irregularity in the form of the originating summons used to initiate the application, the proceedings ought to be carried on in accordance with the directions which I shall set out at the end of this decision under Order 2, rule 1 of the Rules.

16.In relation to the substantive application itself, there are, as I see it, various issues which would merit further consideration, including, but not limited to, the following:

(1)  whether MTRC should properly be regarded as being caught up or having become involved in the alleged tortious or wrongful acts of the police against the Plaintiff such that it would come under a duty to assist the Plaintiff in his intended claim against the Commissioner of Police;

(2)  assuming that the court should ultimately decide to make a Norwich Pharmacal order in the present case –

(a)  what should be the proper scope of the order; and

(b)  what, if any, restriction(s) regarding the use and/or further disclosure of the materials provided by MTRC should be imposed on the Plaintiff.

17.The parties are agreed that MTRC should have an opportunity to file evidence in opposition to the Disclosure Application.  It would therefore not be appropriate for me to further discuss the merits of the application in this decision.

THE INTERIM RELIEF APPLICATION

18.On behalf of MTRC, Ms Sanger argues that the court has no jurisdiction to grant the interim relief sought, because:

(1)  Section 42 of the Ordinance has no application to the present case;

(2)  in any event, Section 42(2)(a) of the Ordinance, which empowers the court to make an order for the inspection, photographing, preservation, custody and detention of “property”, is limited to property which is “the subject matter of the proceedings or as to which any question arises in the proceedings”, and neither limb would apply to the CCTV Footages; and

(3)  an interlocutory injunction can only be granted against a party in proceedings where the applicant has asserted a cause of action against that party, and an application for a Norwich Pharmacal order is not a “cause of action”.  For this principle, Ms Sanger has drawn my attention to (i) The Hong Kong Civil Procedure 2019, Vol 2, at [E1/21L/2], and (ii) Xinyuan Trading Co Ltd v Bank of China [1999] 4 HKC 686 at 689I.

19.In my view, the issue of jurisdiction to grant interim relief in this case can be disposed of on the simple basis that the court has, undoubtedly, “jurisdiction” (in the strict or “theoretical” sense of whether the court or tribunal is capable of entertaining the application referred to by Bokhary PJ in his judgment in Re Chime Corporation Limited (2004) 7 HKCFAR 546, at [9]) to make a Norwich Pharmacal order against MTRC for the disclosure of the CCTV Footages.  That being the position, it seems to me to be obvious that the court must have jurisdiction to grant the interim relief sought by the Plaintiff pending the substantive determination of the Disclosure Application in order to ensure the effectiveness of any Norwich Pharmacal order which may eventually be made.  The reasoning of Ma J in A v B [2002] 3 HKLRD 111, at [37], that the court has jurisdiction to make a “gagging” order in conjunction with the Norwich Pharmacal order sought in that case seems to me to be equally applicable in the present situation:

“The jurisdiction point can be quickly dealt with. In my view, the court undoubtedly has jurisdiction to grant a gagging order. Section 21L of the High Court Ordinance gives the court a very wide statutory jurisdiction to grant injunctions where the justice of the case requires. The court therefore has the power to grant injunctions to ensure that the proceedings before it or its process are rendered effective and just. Section 21L represents a statutory statement of what has always been the court's inherent jurisdiction. A classic example of this jurisdiction (now embodied in statute by section 21L(2) of the High Court Ordinance) is the development of the Mareva injunction. The underlying reason for the grant of a Mareva injunction is to ensure that proceedings brought by a plaintiff are not rendered ineffective or even nugatory.”

20.The critical question for consideration is whether there is before the court sufficient evidence of a risk that, pending the determination of the Disclosure Application, MTRC may not preserve the CCTV Footages, or may meddle with, edit, erase, destroy or otherwise dispose of any part of the CCTV Footages such as would justify the court’s granting of the interim relief sought by the Plaintiff.

21.In support of the Interim Relief Application, the Plaintiff refers to a report issued by the Office of the Privacy Commissioner for Personal Data dated 9 April 2013 to the effect that, according to MTRC’s Administration Manual, the retention period for the close-circuit television footages stored in the DVR systems of all lines (subject to certain exceptions) would be 28 days, but the retention period for “viewed” footages kept by the Operations Safety Section would be 3 years.  The Plaintiff also refers to a similar answer given by the former Secretary for Transport and Housing (Professor Anthony Cheung Ping-leung) in January 2014 in reply to a question raised by a Legislative Councillor, as well as a reply given by MTRC to certain inquiries made by the Hon Mr Fernando Chung which he posted on his Facebook account, as follows:

“港鐵公司就使用閉路電視錄影片段和處理有關資料亦一向有嚴謹的程序和指引，如公司認為有需要就個別個案覆查閉路電視片段，規定只有獲授權的人員方可查看閉路電視的影像。一般而言，港鐵公司會於28日後銷毀錄影了的片段。如果有事情發生，片段日後或有需要使用，例如可能配合有關調查，這類情況錄影片段就會保留。

我們已將8月31日太子站內有關的閉路電視片段根據程[序]和指引保留。”

22.The evidence relied upon by the Plaintiff suggests that CCTV footages recorded at MTR stations would generally be kept for a period of 28 days, but they may be kept for as long as 3 years in some circumstances.  However, the circumstances in which such CCTV footages would be kept for a period longer than 28 days are not clearly or precisely defined. MTRC has recently issued 2 press releases which are relevant for the purpose of the present discussion:

(1)  The 1st press release dated 8 September 2019 was issued in response to repeated wanton and malicious acts of vandalism targeted against equipment and facilities in various MTR stations as well as physical assaults and threats directed at the staff of MTRC which had occurred prior to that date.  In the 1^st press release, the following was stated –

“Multiple acts of vandalism have occurred at Prince Edward Station over the past few days. The Corporation understands the concerns raised about CCTV footage recorded at Prince Edward Station. The Corporation has a set of stringent procedures and guidelines about the use of CCTV footage and the handling of related information. According to established procedures, only authorised persons can view CCTV footage. Generally speaking, CCTV footage will be deleted after 28 days. However, if special occurrences have taken place and the CCTV footage may need to be reviewed at a later stage, such as in the event that the footage may be used to assist in an investigation, the relevant footage will be kept for three years. This practice has made reference to the guidelines from the Office of the Privacy Commissioner for Personal Data. The relevant CCTV footage from Prince Edward Station will therefore be kept for three years.”

(2)  The 2^nd press release dated 10 September 2019 was issued in specific response to the incident which occurred at Prince Edward Station in the evening of 31 August 2019, and included the following statement –

“In general, CCTV footage will be destroyed 28 days after it was recorded. When there is any special occurrence giving rise to a need to review relevant footage at a later time, such as for investigation purposes, it will be kept for three years. This arrangement is made with reference to the guidelines of the Privacy Commissioner for Personal Data. Relevant footage recorded at Prince Edward Station and other relevant stations on 31 August will be kept for three years.”

23.Mr Cheung makes two points in respect of MTRC’s press releases.  First, he says that the press releases only state that the “relevant” CCTV footage would be kept, and that leaves it to MTRC to decide what is relevant and what is not relevant.  Second, he says that the 2^nd press release states that the relevant footage recorded at “Prince Edward Station and other relevant stations on 31 August will be kept for three years” without confirming that the CCTV footage recorded at Lai Chi Kok Station would be kept for three years.

(1)  In respect of the first point, it seems to me to be clear that the “relevant” CCTV footage mentioned in the 2 press releases would cover the incident which occurred at Prince Edward Station in the evening of 31 August 2019.

(2)  The second point is, I consider, answered by paragraph 8 of the Affirmation of Hana Connie, who confirms that the reference to “other relevant stations” in the 2^nd press release includes Lai Chi Kok Station.

24.Mr Cheung also submits that MTRC “cannot possibly suffer any prejudice that cannot be compensated by costs, and the Plaintiff agrees to indemnity MTR’s costs”.  It must be emphasised, however, that an interlocutory injunction is not granted against a defendant merely because he may not suffer any prejudice as a result of the injunction.  The burden is on the plaintiff to show a proper case for the court’s exercise of its discretion to grant an interlocutory injunction.  In order to discharge this burden, it is not sufficient for the plaintiff to show merely that the person to be restrained will suffer no prejudice as a result of the injunction.

25.What has caused me some concern, though, is that in neither of the 2 press releases did MTRC confirm that the relevant CCTV footage recorded at Lai Chi Kok Station on 1 September 2019 would be kept or preserved.  Since part of the Disclosure Application relates to the CCTV footage recorded at Lai Chi Kok Station from 12:30 am on 1 September 2019 to 2:00 am on 1 September 2019, such CCTV footage ought to be preserved pending the determination of the Disclosure Application.

26.The omission by MTRC to expressly refer to the CCTV footage recorded at Lai Chi Kok Station on 1 September 2019 in the two press releases is not surprising because they were not issued specifically for the purpose of responding to the Plaintiff’s current application.  It is also possible that MTRC may, in any event, keep the CCTV footage recorded at Lai Chi Kok Station on 1 September 2019 pending at least the determination of the Disclosure Application.  In this regard, there is no basis whatsoever to doubt the good faith of MTRC.  There is, nevertheless, a risk which I do not consider can be ignored that the CCTV footage recorded at Lai Chi Kok Station between 12:30 am and 2:00 am on 1 September 2019 may be erased or disposed of in accordance with MTRC’s general procedure prior to the substantive hearing of the Disclosure Application.  Balancing all relevant circumstances, I am prepared to grant an interim order that MTRC do preserve in its safe custody the CCTV Footages pending the determination of the Disclosure Application.  For this purpose, I do not propose to differentiate between the close-circuit television footage recorded at Prince Edward Station from 9:45 pm on 31 August 2019 to 1:45 am on 1 September 2019, and that recorded at Lai Chi Kok Station from 12:30 am on 1 September 2019 to 2:00 am on 1 September 2019.  It is not necessary, however, to make a further order that MTRC be restrained from meddling with, editing, erasing, destroying or otherwise disposing of any part of the CCTV Footages.

DISPOSITION

27.In relation to the Plaintiff’s Originating Summons dated 9 September 2019, the following directions are given:

(1)  the Defendant shall have leave to file and serve evidence in opposition within 28 days from the date of the order herein;

(2)  the Plaintiff shall have leave to file and serve evidence in reply (if so advised) within 28 days thereafter;

(3)  no further evidence may be filed without leave of the court;

(4)  the substantive hearing of the Originating Summons shall be adjourned to a date to be fixed, with ½ day reserved; and

(5)  the parties shall, within 14 days, provide the court with the available dates of their counsel for a ½-day hearing during the period from 1 December 2019 to 31 March 2020.  The court shall take into account counsel’s diaries but will not be bound by the same when fixing the date for the substantive hearing of the Originating Summons.

28.In relation to the Plaintiff’s Summons dated 9 September 2019, I make an order that MTRC do preserve in its safe custody the CCTV Footages pending the determination of the Disclosure Application.

29.Lastly, the costs of and occasioned by the Plaintiff’s Summons, and the costs of the hearing on 16 September 2019 in relation to both the Originating Summons and Summons, shall be in the cause of the Originating Summons.

Mr Anthony P W Cheung and Mr Leon Ho, instructed by Ho Tse Wai & Partners, for the Plaintiff

Ms Kathryn Sanger, of Herbert Smith Freehills, for the Defendant