U Storage Group Ltd v. Director of Fire Services

HCAL 490/2019

[2020] HKCFI 718

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 490 OF 2019

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BETWEEN

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Before: Hon Wilson Chan J in Chambers

Date of Applicant’s Written Submissions: 22 April 2020

Date of Putative Respondent’s Written submissions: 29 April 2020

Date of Decision: 4 May 2020

Date of Reasons for Decision: 7 May 2020

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REASONS FOR DECISION

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A. INTRODUCTION

1.By paragraph 3 of its summons filed on 10 March 2020 (the “Summons”), the Applicant sought leave to adduce a Witness Statement of Wong Yuk Ping (“Wong”) disclosed in the prosecutions against one Tai Yau Storage Group Limited, a set of criminal proceedings pending before the Kowloon City Magistrates’ Court (the “Tai Yau Prosecutions”), which do not concern the Applicant or the subject premises in this judicial review (“Wong’s Magistrate Statement”). 

2.Pursuant to paragraph 9 of the Consent Order dated 6 April 2020, the Applicant informed the Court and the Putative Respondent by letter dated 20 April 2020 that it would no longer pursue its application to cross-examine Wong on his 1^st Affidavit filed on 25 September 2019 (“Wong 1^st”), as set out in paragraph 2 of the Summons, conceding that it would not be useful to cross-examine a witness solely as to credibility in judicial review proceedings.

3.The Putative Respondent opposed the application, inter alia, for the following reasons:

(1) The Putative Respondent has not breached its duty of candour in not disclosing Wong’s Magistrate Statement in these proceedings.  Wong’s Magistrate Statement is irrelevant and would not assist the Court in the just disposal of the issues arising.

(2) Wong’s Magistrate Statement remains confidential as it has not been used or read out in the court. Tai Yau is bound by an implied undertaking not to use Wong’s Magistrate Statement for collateral purposes.

(3) No release from the implied undertaking should be granted to Tai Yau as the Applicant has failed to show any special circumstances to justify the release. 

4.On 4 May 2020, this Court ordered, inter alia, as follows: –

(1) Paragraph 3 of the Summons was dismissed.

(2) Order nisi that the costs of the application be paid by the Applicant to the Putative Respondent with a certificate for 2 counsel.

5.Reasons for Decision were reserved, which are given below.

B. NO BREACH OF DUTY OF CANDOUR

B1. Governing principles

6.The nature and extent of the duty of candour in the context of judicial review has been explained by the Court of Appeal in Chu Woan Chyi v Director of Immigration [2009] 6 HKC 77 at §§13 and 14.  In particular:

(1) §14(6): The duty of candour is not an open ended or imprecise concept.  What in any given case may constitute the fulfilment of that duty is entirely dependent on the issue or issues that are before the court.  The court will be astute in judicial review proceedings not to permit “fishing” expeditions by applicants in the hope of unearthing materials to enable a challenge to be mounted.

(2) §14(6): The court will, in most judicial review proceedings, not make a general order for discovery based on Peruvian Guano principles because in most cases, there will simply be no necessity for such an order.  This explains why there is no automatic discovery in judicial review proceedings.  If discovery is required, a separate application must be made under Order 53, rule 8 of the Rules of the High Court (“RHC”).

(3) §14(7): The court will make an order (by way of discovery or otherwise) to enable it fully and fairly deal with the issue or issues before it, once (a) the critical issues have been identified in the judicial review; and (b) the resolution of those issues requires the court be provided with adequate material.

B2.    Wong’s Magistrate Statement is irrelevant to the grounds as formulated in the Amended Form 86

7.The Putative Respondent has explained in the 2^nd Affidavit of Wong (“Wong 2^nd”) the alleged discrepancies between the Wong’s Magistrate Statement and Wong 1^st which form the basis of this application.

8.As submitted by the Putative Respondent, I agree it is clear in the present case that there has been no breach of duty of candour on the part of the Putative Respondent in not disclosing the existence or content of Wong’s Magistrate Statement:

(1) Wong’s Magistrate Statement was disclosed in the Tai Yau Prosecutions, a set of criminal proceedings pending before the Kowloon City Magistrates’ Court, which does not concern the Applicant or the subject premises in this judicial review, and is plainly irrelevant. 

(2) The Tai Yau Prosecutions concern FHANs issued in respect of “Tai Yau’s premises”.  Obviously, those FHANs have nothing to do with the Applicant or the subject premises.

(3) Notwithstanding minor disagreements as to precisely what was stated during the mention hearings in the Tai Yau Prosecutions, there is no dispute that the Magistrate had expressed the view that if Tai Yau was minded to raise any challenge that the issuance of the FHANs was an administrative fault, that should be raised in judicial review proceedings to be dealt with by a superior court.

(4) As stated in Wong 2^nd §§16 and 28, Wong’s Magistrate Statement “was prepared for the Tai Yau Prosecutions and on the basis that any constitutional or administrative challenge against the FHANs should only be raised in judicial review proceedings, and not in the criminal proceedings”.  This part of Wong 2^nd is not challenged or disputed by the Applicant.

(5) The clear evidence in Wong 2^nd §§15 & 28 is that Wong’s Magistrate Statement “was not intended to be a detailed or exhaustive explanation of all the matters considered by the FSD in devising the fire hazards abatement measures”.  Again, this part of Wong 2^nd is not challenged or disputed by the Applicant.

(6) How the Applicant or Tai Yau may have understood to be the object or purpose of Wong’s Magistrate Statement is, of course, neither here nor there.  What is important for the purposes of the Applicant’s case (as formulated in its Amended Form 86 §§73(2)(a)-(c)), is whether or not the absence of specific references to the overseas standards and guidelines (“Guidelines”) in Wong’s Magistrate Statement necessarily meant that such Guidelines amount to ex post facto justifications for the fire hazard abatement measures stated in the FHANs.  In the light of the unchallenged explanations in Wong 2^nd §§15-16 & 28, clearly it does not.

(7) In any event, the Applicant’s contention that the Guidelines are ex post facto justifications is flatly contradicted by the contemporaneous documents already disclosed in these proceedings. 

(8) As could be seen from page 4 of the Minutes of Meeting between, inter alios, the Fire Services Department (“FSD”) and the Trade dated 21 September 2016 (exhibited at HWM-5), the FSD had informed the Trade back in September 2016 that “Both local and international standard/code had been adopted, e.g.  [the Guidelines]. Nonetheless, FSD would also formulate requirements according to the fire-fighting operational viewpoints and local situations”.  

9.In the circumstances, it is plain that:

(1) Wong’s Magistrate Statement would not assist the Court at all in determining whether or not the Guidelines amount to ex post facto justifications and is irrelevant to the issues raised as formulated in the Amended Form 86.

(2) The Putative Respondent has not breached its duty of candour in not disclosing Wong’s Magistrate Statement.

10.To the extent it is contended by the Applicant that leave to adduce Wong’s Magistrate Statement should be granted on Peruvian Guano principles, this should be rejected:

(1) This is not a discovery application and the Peruvian Guano principles simply do not apply.

(2) In any event, no order based on Peruvian Guano principles should be made because there is no necessity for such an order, given the obvious irrelevance of Wong’s Magistrate Statement and the absence of any breach of the duty of candour in this case. 

11.As pointed out by the Putative Respondent, the position in paragraph 9 above appears to be accepted by the Applicant, as is evidenced by the following:

(1) In the light of HWM-5, the Applicant now “disavows” its previous suggestion that the FSD was unaware of the Guidelines when the fire hazards abatement measures were formulated.

(2) The Applicant indicated an intention to seek leave to re-amend its Amended Form 86, no doubt as an implicit recognition of the insufficiency of the grounds as formulated in the Amended Form 86 to justify why Wong’s Magistrate Statement should be adduced. 

B3.    No breach of duty of candour by depriving the Court of “best evidence”

12.As to the suggestion that the Putative Respondent has breached its duty of candour by “actively resisting” leave to adduce Wong’s Magistrate Statement, thereby depriving the Court of the “best evidence” of the reasons behind the formulation of the Mini-Storage Compliance Policy and the Applicant’s case of ex post facto justification, I agree with the Putative Respondent’s submission that this argument is plainly untenable.

13.Contrary to the Applicant’s assertion, Wong’s Magistrate Statement is not the “best evidence” of the reasons behind the formulation of the Mini-Storage Compliance Policy:

(1) The Putative Respondent has already disclosed the relevant contemporaneous documents relating to the formulation of the fire hazards abatement measures in the evidence filed in opposition to these judicial review proceedings.  Wong’s Magistrate Statement was not referred to in any of the evidence in opposition filed; nor did it constitute the source of any knowledge or information in any such evidence.

(2) Wong’s Magistrate Statement is not a contemporaneous record of the matters taken into account in formulating the fire hazards abatement measures.  Rather, it was prepared for the purpose of the Tai Yau Prosecutions after the first mention hearing on 11 July 2018 and provided to Tai Yau shortly before the second mention on 22 August 2018, some 21 months after the first set of FHANs were issued to the Applicant on 14 October 2016.

14.Similarly, Wong’s Magistrate Statement is not the “best evidence” of the Applicant’s case of ex post facto justification.  I repeat the matters set out in Section B2 above.

C.      TAI YAU IS SUBJECT TO AN IMPLIED UNDERTAKING NOT TO DISCLOSE WONG’S MAGISTRATE STATEMENT

15.Tai Yau is bound by an implied undertaking not to use Wong’s Magistrate Statement for purposes other than the Tai Yau Prosecutions. 

16.In criminal proceedings, the prosecution is under a duty to disclose to the defence both materials relied upon as part of the prosecution’s case and relevant materials that are in its possession.  On the other hand, the defence is subject to an implied undertaking only to use the disclosed documents for the purposes of the criminal case: Allied Group Limited & Anor v the Secretary for Justice & Anor CACV 1/2003 (unrep., 10/10/2003) per Cheung JA at §62.

17.The rationale of the implied undertaking in criminal context is explained in HKSAR v Lee Ming Tee & Securities and Futures Commission (2003) 6 HKCFAR 336 and Taylor v Serious Fraud Office [1999] 2 AC 177:

(1) As Sir Anthony Mason NPJ held in HKSAR v Lee Ming Tee (supra), in a criminal case, a strong obligation of disclosure will preserve the criminal trial as the appropriate forum for determining the criminal charge.  Striking the appropriate balance between fairness to the defendant and protecting public interest in the detection and punishment of crime is to be achieved not by reducing the scope of the disclosure rules but by restricting the collateral use of disclosed material: §§164-165;

(2) In Taylor v Serious Fraud Office (supra), Lord Hope of Craighead held at 218B-D that: 

“But the administration of justice is not all about fairness to the defendant. It is also about the interests of those individuals who may be affected by dissemination of the material. There is a public interest also, in the detection and punishment of crime. If that interest is put at risk because of the consequences of the disclosure rules, the balance between the public interest and the interests of the individual is disturbed. It needs to be adjusted in favour of the public interest. This cannot be done by reducing the scope of the disclosure rules. That would prejudice the right of the defendant to a fair trial, which is always paramount. What can be done is to increase the protection to those who may be affected by the disclosure rules against the collateral use of such material—that is to say, against its use for purposes other than to ensure that the defendant has a fair trial.” (Emphasis added)

18.The Applicant’s submissions in this regard heavily rely on Shun Kai Finance Co Ltd & Ors v Japanese Leasing (HK) Ltd (No. 2) [2000] 3 HKLRD 539 and Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756 for the proposition that in civil procedure, there is a distinction between materials produced under compulsion pursuant to general discovery under Order 24 RHC and materials disclosed voluntarily under Order 24, rules 10 and 11 (documents referred to in pleadings and affidavits) and Order 38, rule 2A (witness statement), such that the former will be subject to an implied undertaking not to be used for collateral purposes, whereas the latter is not subject to the undertaking. 

19.Those principles were made in the context of civil proceedings, and do not concern materials disclosed in criminal proceedings.  As can be seen from the cases cited in paragraphs 16 and 17 above, in the criminal context, different principles and considerations apply. 

20.It remains a fact that the Tai Yau Prosecutions have not yet proceeded to trial and the Wong’s Magistrate Statement has not been used or read out in open court.  As such, the content of the Wong’s Magistrate Statement remains confidential.  It is not for the Applicant to predict whether or not the Tai Yau Prosecutions may go ahead or how likely the Prosecution would call Wong if the trial proceeds. 

21.The Applicant further argues that using the Wong’s Magistrate Statement in these proceedings is not a “collateral purpose”.  This argument is wrong.  As explained by Lord Hope in Taylor v Serious Fraud Office, “collateral purpose” means any purpose other than to ensure that the defendant (ie Tai Yau) has a fair trial in the prosecution (ie the Tai Yau Prosecutions). 

22.Applying the above analysis, there can be no doubt that Wong’s Magistrate Statement, being part of the materials provided by the Prosecution to Tai Yau under their obligation to disclose, is protected by Tai Yau’s implied undertaking not to use the Wong’s Magistrate Statement other than defending the Tai Yau Prosecutions. 

D. NO RELEASE FROM THE UNDERTAKING SHOULD BE GRANTED

23.The Applicant further invites this Court to release Tai Yau from its implied undertaking. 

24.Even assuming that the Applicant has locus standi to apply for the release of Tai Yau’s undertaking, the burden falls squarely on the Applicant to give cogent and persuasive reasons to demonstrate that (a) there are special circumstances to justify its application for Tai Yau to be released from the undertaking; and (b) the release will not occasion injustice to the person making the disclosure: Secretary for Justice v Florence Tsang Chiu Wing (2014) HKCFAR 739 per Ribeiro PJ at §23. 

25.In deciding whether a release would be granted, the court will take into account many factors depending on the circumstances in a particular case.  Such factors include the nature of the document, nature of the information in the document, any prejudice the author of the document may sustain and the likely contribution of the document to achieving justice in the second proceedings: Unicredit Bank Austria AG v Dragon Wise Trading Ltd [2013] 2 HKLRD 169 per Au-Yeung J at §8(6). 

26.In the present case, I agree the Applicant has simply failed to put forward any cogent and persuasive reasons to demonstrate why there are special circumstances warranting the release of Tai Yau from its implied undertaking.  In this regard, I repeat the matters set out in Section B2 above. 

27.In the circumstances, the Applicant’s request to release Tai Yau from its undertaking should not be entertained by this Court.

E. CONCLUSION

28.For the above reasons, paragraph 3 of the Summons was dismissed with costs. 

Mr Earl Deng, Mr Anthony Lai and Mr Jasper Wong, instructed by Howell & Co, for the Applicant

Ms Catrina Lam and Ms Sabrina Ho, instructed by the Department of Justice, for the Putative Respondent and the Putative Interested Party