Hong Kin Wai v. Hong Kin Chun (By His Next Friend & Guardian Ad Litem, Lee Chiu Fung)

HCA 1204/2018

[2021] HKCFI 353

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1204 OF 2018

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DECISION

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1.This is the defendant’s application for third party discovery pursuant to section 42(1) of the High Court Ordinance.

2.The claim between the plaintiff and defendant relates to the existence or otherwise of a trust agreement over a residential unit (the “Unit”) within a building (the “Building”) and a sum of money. 

3.It is the defendant’s case for this application that since May 2019 when the plaintiff filed a notice to act in person, the plaintiff’s whereabouts have become unknown.  The defendant’s efforts to contact him has not been successful.  The defendant has formed the view that the management and security office of the Building will be able to provide information in that regard, as the plaintiff and a Mr Cheng, the plaintiff’s cousin, have been seen visiting the Building for various purposes. 

4.The next friend of the defendant therefore on 23 December 2020 took out the present application.  She seeks an order against all members of the management and security office of the Building to within 7 days make and file an affidavit stating whether they have or have at any time had in their possession, custody or power records in relation to the full name, identity, postal/correspondence address, email, telephone number, and/or identity/passport of the person or persons accessing the Unit.  She also seeks inspection of such records.

5.The power of the Court under section 42(1) of the High Court Ordinance is confined to ordering discovery of “documents which are relevant to an issue arising out of that claim”.  There is no authority shown to me suggesting that that includes the whereabouts of a party to an action which is already on foot.  In my view, and at least in the context of the present case, it does not.  The master decision of Liu Cheung Keung v Ng Chi Keung, unrep, HCPI 272/2008 (1 August 2008) cited to me related to the address of the intended defendant for service of process, and is different from the present case.

6.In addition to the above jurisdictional concern, I am of the view that the order being sought is in any event unduly and unjustifiably wide.  It gives rise to grave privacy concern the full significance of which has not been addressed.

7.The defendant has declined the further time offered by this Court to research into the matter.  In the circumstances, I dismiss the application.

8.As no other parties have appeared this morning, I make no order as to costs.

The Plaintiff was not represented and did not appear

Mr Jeffrey C F Sham, instructed by Ho & Associates, for the Defendant