Chow Kin Hang Ali v. Secretary for Justice for and on behalf of Food and Environmental Hygiene Department

DCEC 1413/2019

[2021] HKDC 360

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1413 OF 2019

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IN THE MATTER OF AN APPLICATION BETWEEN

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Before:  Her Honour Judge Levy in Chambers (Open to Public)

Date of Hearing:  9 March 2021

Date of Decision:  9 March 2021

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DECISION

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1.Before I refer to the application by the applicant, for the purpose of background, I think I should summarise the nature of the applicant’s claim. In fact, the claim was succinctly summarised by Mr Poon, solicitor for the respondent, in paragraph 3 of his written submissions.

2.The applicant, at the material time of an alleged accident that took place on 20 June 2017, was employed by the Food and Environmental Hygiene Department.  Due to a new assignment or new posting assigned to the applicant, the applicant alleged that he was emotionally triggered on the alleged date of accident and as a result of which he suffered from psychiatric damage.

3.Witness statements for both parties were already filed and exchanged.  By the summons dated 3 November 2020, the applicant sought discovery of eight items of documents and required the respondent to produce them.  The respondent resisted the application.  The eight items of documents are already set out by way of table in Mr Chow’s affirmation.  For convenience, as Mr Chow has agreed, notwithstanding that there are altogether eight items, they can be grouped into six items.

4.Items 1 to 3 belong to one category of documents.  They are documents concerning with the communication and correspondence exchanged between the respondent and the Department of Justice.

5.Item 4 is in relation to the launch of a new kind of job assignment which the applicant described as “DET” in short.  Mr Poon has helpfully informed the court that “DET” stands for “District Enforcement Team”.  And this “DET” was in fact the new post that the applicant was assigned to on the date of the accident.

6.Item 5 is in relation to the inquiries and complaints made by the applicant to a Government hotline number “1823”.

7.Item 6 relates to the notebooks of a number of departmental officials involved with the management and administration, which Mr Chow states in Item 6 as “in the concerned period”.

8.Item 7 is in relation to documents of Mr Chow’s appraisal report conducted by the Yuen Long District Area.

9.Item 8, the last item, is very difficult to understand.  However, after inquiries from the court, Mr Chow clarified that those documents are in relation to the department’s internal documents dealing with complaints made against management-level staff.  Mr Chow further clarified that the two subject staff are a Mrs Cheng and another person Mr Chow that he complained of misconduct in the handling of this accident.

10.So broadly, those are the subject documents the applicant is now seeking discovery from the respondent.

11.In opposing this application, the respondent filed an affirmation of Yuen Hon Wan, who is an employee of the respondent, which affirmation in my view, actually does not assist this court.  This is because what he was referring to is simply some legal advice given by his legal advisors.  So I think apart from exhibiting the correspondence exchanged between the applicant and the respondent’s solicitors, the rest of the content in the opposing affirmation is not useful.

12.Before I deal with these different items in turn, I think it will be useful to start with the discussion of the relevant legal principles.  An application for specific discovery of documents is governed by O 24, r 7 of the Rules of the District Court.

13.It is not necessary to repeat the established governing principle.  As Mr Poon has specifically referred to a statutory requirement set out in O 24, r 7(3), I would set it out below for the sake of completeness.  Order 24, r 7(3) states:-

“An application for an order under this rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this rule has, or at some time had in his possession, custody or power the document, or class of document, specified or described in the application and that it relates to one or more of the matters in question in the cause or matter.”

14.Under this rule, the preliminary criteria an applicant for specific discovery has to satisfy are two: First, the applicant has to show by his supporting affidavit that the party against whom discovery is sought has, according to the applicant’s belief, those documents; secondly, once he passes the first hurdle, the next criterion an applicant has to satisfy is that those documents relate to the matters in question, which is the criterion of relevancy.

15.Mr Poon, in his submissions, submitted that the applicant has already failed the first statutory requirement because in Mr Chow’s supporting affirmation, he failed firstly to state whether the respondent has or had in possession of these documents.  And next, he has also failed to state that in his belief those eight items of documents he sought are relevant to the issues in dispute.  It is true that Mr Chow, in his supporting affirmation, failed to clearly state whether those documents existed and, secondly, how those documents are relevant.

16.Insofar as the first criterion is concerned (what I call the possession point), I do not think the respondent is objecting to this application on the basis that it is not in possession of those documents.  Because of this reason, I am prepared to waive the applicant’s non-compliance of this requirement.

17.As for the second criterion: relevance, which is the most important requirement because the established principle has expanded the scope of relevance.  Mr Poon, in his submissions, has set out a case summarising the number of matters that the court needs to take into consideration.  Pertinently, I think, insofar as relevancy is concerned, the court will have to decide whether those documents sought are “necessary either for disposing fairly of the cause or matter or for saving costs”.  This is the new requirement after the Civil Justice Reform.

18.These are the legal principles that I need to have regard to when considering Mr Chow’s application for specific discovery.

19.Mr Chow has not stated in his supporting affirmation the above-mentioned grounds in support of his application for the discovery of the items of documents.  Since he is acting in person, I have given Mr Chow a lot of leeway, and only required him to explain to the court as to why those documents that he requested are relevant.  I do not propose to go through each and every single item of the documents because I could deal with them in broad terms.

20.Before I deal with those items, firstly, I would like to make one point in relation to Mr Chow’s submissions in relation to the jurisdiction of the EC Court.  Mr Chow submitted that, “while other civil courts dealing with common law cases, those courts have adversarial function. However, in the EC cases, the court carries out inquisitorial function, to take an active role in making inquiry”.  He referred to Practice Direction 18.2, the requirement of the represented parties to provide information and also by providing or furnishing with the court an appendix “D”.

21.I think Mr Chow misunderstood the legal position of employees’ compensation proceedings.  Employees’ compensation proceedings are no different to any civil jurisdictions.  The court’s function is not inquisitorial.  The court’s function remains adversarial.  His reference to the Practice Direction requiring solicitors to give information in the form of appendix “D” is a practice that enables a court to carry out more efficient case management.  This does not alter any substantive law.  This is the first point I wish to state insofar as the law is concerned.  I would now come to discuss the specific items of discovery.

22.As I mentioned before, Items 1, 2 and 3 all belong to the same category.  Broadly speaking, they are all communications between the respondent and the Department of Justice for the purpose of seeking legal advice.  I agree with Mr Poon’s submissions that these documents are all protected by legal professional privilege, which specifically is legal advice privilege.  Mr Poon has correctly stated the law regarding legal professional privilege, which is an absolute privilege unless it is waived or abrogated. In this case, the respondent had asserted legal professional privilege and has not waived it.  The court has no jurisdiction to order the discovery of these documents.  They remain to be privileged and they should not be provided to the applicant.

23.As to the remaining items of documents, Items 4 to 8, I decline discovery.  Firstly, I decline discovery because it is oppressive, and the application is imprecise.  The documents involved are voluminous.  By way of Item 4, Mr Chow required the respondent to provide all the documents, basically all documents pertaining to the launch of that new job assignment, “DET”, which, in my view, must be voluminous.  Secondly, another example is Item 6.  Mr Chow was not able to even inform the court what those abbreviated job titles are, but he only loosely referred to the notebooks of almost every single department head involved with the management and administration during the concerned period.  Apart from being imprecise, I also find the documents involved are voluminous.  For those reasons, I find the discovery for these documents oppressive.

24.Secondly, the documents sought are vague and imprecise.  It will be very difficult for the respondent to comply with an order of discovery.  By way of example: in Item 5, he wants the respondent to provide all documents in relation to the complaints he made to a Government telephone hotline.  No date or period was specified.  Again, it will be very difficult for the respondent to comply with an order of discovery.  Similarly, for Item 7, the appraisal report.  He has been with the respondent for some time, there was no specification as to which particular appraisal report that he wishes the respondent to disclose.  Due to the very imprecise nature of the application, it would be almost impossible for the respondent to comply with an order of discovery.

25.Apart from having found the application oppressive and imprecise, I also find that the documents sought are irrelevant to the issues in dispute.

26.As I have informed the applicant in his course of submissions that insofar as employees’ compensation proceedings are concerned, it is a statutory scheme based on “without fault”.  The applicant does not need to prove the respondent was at fault.  The gist or the issue in this case, as Mr Poon has submitted in his submissions, is that the applicant bears the burden of proof in proving that on the alleged date in question, while in the course of employment, he met an accident which caused him personal injuries.  So these are the essential elements that the applicant need to prove in this case.

27.Those documents, Items 4 to 8, do not show whether the accident occurred or whether he suffered personal injuries.  They are all in relation to his dissatisfaction with the way his department handled his work injury or his alleged accident.  He was not satisfied with the way his department handled the number of complaints he made against some specified staff of the department; and also his complaint about the new task that he was assigned to.  These matters, in my view, have no relevance to the issues in this case.

28.I refuse Mr Chow’s application for discovery for the reasons that none of these document is relevant in disposing fairly of the cause or matter, and that this application will not serve the purpose of saving costs.  I dismiss the applicant’s summons.

29.The applicant do pay the respondent’s costs of this summons, including costs reserved, to be taxed if not agreed.

30.This order is to be drawn up by the respondent’s solicitor.

The applicant appeared in person

Mr C M Poon, of Tony Kan & Co, for the respondent