Hui Chi Fung v. Commissioner of Police

HCMP 79/2020

[2020] HKCFI 1167

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 79 OF 2020

____________________

____________________

____________________

Before: Hon G Lam J in Chambers

Date of Hearing: 9 June 2020

Date of Decision: 9 June 2020

_______________

D E C I S I O N

_______________

1.By originating summons in these proceedings, the plaintiff seeks pre‑action discovery from the defendant under section 41 of the High Court Ordinance (Cap 4) for the purposes of an intended application for leave to apply for judicial review. The proposed judicial review is intended “to challenge the legality and/or reasonableness and/or proportionality of the deployment of teargas in [the plaintiff’s] constituency by the police”, the constituency being A01 Chung Wan in the Central and Western District in relation to the District Council. Discovery is sought of documents “relating to the ingredient of the tear gas deployed by the Hong Kong Police Force in the Central District and the chemical compounds that would be emitted”.

2.The only point that requires determination at this moment is whether two issues should be ordered to be determined first as preliminary issues, namely: (1) whether pre‑action discovery under section 41 is applicable for intended judicial review proceedings; and (2) whether the documents sought are necessary and/or relevant for commencing the intended judicial review proceedings.

3.Applying well established principles, I do not think these questions should be tried as preliminary issues. The general rule is that all the issues in a case are to be tried at one and the same time, and the burden is on the party contending for preliminary issues to demonstrate that it is just and convenient to depart from the general rule: Telford Development Ltd v Shui On Construction Co Ltd [1990] 2 HKC 110, 117B. Preliminary issues should only be ordered in exceptional circumstances or on special grounds: Mai Gou v Mak Chik Lun [2001] 3 HKLRD 248, 251.

4.The proposed preliminary question of whether the documents are necessary and directly relevant, as required by section 41, is at the heart of the discovery action itself and turns on its substantive merits.  There is nothing preliminary about it.  Hearing and determining this question is likely to take up a substantial part of the time needed for dealing with the action itself.  Ms Chan says that the question can at present be decided without further evidence being filed by either party.  Whether further evidence is necessary is a matter for the parties but I do not consider this to be a factor supporting the ordering of preliminary issues.

5.As for the other question, it is admittedly a short and discrete one of statutory interpretation and a threshold question relating to the court’s jurisdiction.  It will, however, only obviate the need to deal with the substance of the action if it is decided in favour of the defendant.  The potential savings in time in the present case are, in any event, as I see it at present, limited, given that the action itself is an originating summons to be decided on affidavits, the trial of which is unlikely to occupy a very long time. 

6.One must in addition take into account the difficulties that preliminary issues can sometimes create for the appellate courts, and the potential costs, time and complexities that preliminary points and appeals from them may generate.

7.I am not persuaded that there are some special grounds for the proposed preliminary issues to be ordered.  I shall therefore give directions for the conduct of the originating summons.

Mr Joe Chan and Ms Jessica Leung, instructed by Victor Yeung & Co, for the Plaintiff

Ms Katherine Chan, GC of Department of Justice, for the Defendant