Ng Ying Mo v. Secretary for Justice (for and on behalf of Commissioner of Police)

HCMP 2206/2019

[2021] HKCFI 2842

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2206 OF 2019

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J U D G M E N T

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A. INTRODUCTION

1.This is the hearing of the Originating Summons dated 27 November 2019 (“OS”), by which the plaintiff seeks “pre-action discovery and/or discovery by Norwich Pharmacal”.

2.As submitted by the defendant, the mechanism of “pre-action discovery” and for “Norwich Pharmacal” relief are specific procedures applicable to civil claims, which are extraordinary powers vested in the court to avoid injustice.

3.However, it is apparent from the pre-action correspondence that the current application under the OS was precipitated by the plaintiff conflating:

(1)     “train of inquiry” documents, which are only discoverable in inter partesdiscovery after commencement of action based on the “Peruvian Guano” principle;

(2)     “unused material”discoverable in criminal proceedings.

4.The court’s power to grant “pre-action discovery” and/or “Norwich Pharmacal” relief are not to be invoked unless the specific stringent criteria are fulfilled.  Furthermore, these powers are not there to facilitate the plaintiff’s attempt to “fish” for a case or to “fine-tune” his case.

5.At long last, from the relief sought in the OS as well as paragraphs 1, 7 and 59 of the plaintiff’s skeleton, it is now clear that the plaintiff’s focus is to seek discovery of the identities of various police officers involved in two specific incidents.  In particular, by the OS the plaintiff seeks to identify:

(1)     The police officer who aimed, fired and shot a less-lethal firearm at the plaintiff at or around the junction of Tim Wa Avenue on 12 June 2019 (“Police Officer A”);

(2)     All other police officers in the same squad and deployed at the same time as Police Officer A at the time of the abovementioned incident on 12 June 2019;

(3)     The superior of Police Officer A who commanded and authorised Police Officer A to aim at, fire at and shoot at the plaintiff on 12 June 2019 (the “Superior Officer”);

(4)     The police officer pictured in Annex B to the OS (“Police Officer B”); and

(5)     All other police officers in the same squad and deployed at the same time as Police Officer B between 18:30 to about 23:59 on 4 August 2019.

6.The plaintiff has belatedly recognised at paragraph 30 of the plaintiff’s skeleton that discovery of the identities of the respective squads is not necessary at this stage, and the plaintiff does not pursue that part of his application at this hearing.

7.In response, the defendant submits that since (i) the 3 relevant officers concerned (as described in paragraph 5(1), (3) and (4) above) have been confirmed to be police officers by affidavit evidence (see the Affirmation of Lee Kenneth Yuet Lun dated 31 January 2020 (“Lee’s Aff”), at §§15 & 16; and (ii) there is no anticipated difficulty on the part of the plaintiff in serving these officers at their last known address (ie the police headquarter), the discovery sought under the OS is misconceived and/or unnecessary.

8.Importantly, the details of the names, unique identification numbers, ranks and posts (unit assigned) of the 3 relevant officers are unnecessary and/or irrelevant for the alleged purpose of commencing proceedings since the plaintiff readily accept that the names of the 3 relevant officers could be anonymised (see paragraph 6 of the plaintiff’s skeleton).

9.Having said that, contrary to the impression which the plaintiff seeks to give, paragraph 6 of the plaintiff’s skeleton is the first time the plaintiff “offers” to (i) undertake not to disclose the identities of the alleged tortfeasors; and (ii) consent to the anonymisation of the names.  No such offer has previously been made.  In any event, as further explained below, the defendant’s stance is that it is not necessary even for the plaintiff to know the identities of the relevant police officers to commence proceedings.

B.     BACKGROUND

10.The plaintiff’s present application concerns the two incidents, which took place during the protests in Hong Kong starting in mid-2019.

B1.    The Tim Wa Avenue Incident

11.The first incident took place on 12 June 2019. On that day, tens of thousands of protestors participated in an unauthorised public meeting in the vicinity of the Legislative Council to prevent the commencement of the LegCo meeting and the second reading of the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019.  Clashes between the protestors and the police escalated after about 3:00pm, when protestors charged at the police cordon lines set up around the Central Government Complex.  In particular, at around 3:05pm, hundreds of protesters attacked the police checkline on the north and south sides of Tim Wa Avenue, and threw various objects at police officers, who had to retreat.  The police regained control of Tim Wa Avenue at 5:32pm that day, and set up a checkline at the junction of Tim Wa Avenue and Harcourt Road (ie near the Chief Executive’s office).  However, thousands of hostile and violent protestors refused to leave, and continued to remain on Harcourt Road, confronting the police.

12.Suddenly, the plaintiff, wearing a pair of goggles and face mask with cling film wrapped around his limbs, detached from the crowd and approached the police checkline in an agitated manner, brandishing his arms defiantly.  The crowd behind the plaintiff was incited by his act, and began shouting and throwing objects at the police.

13.Believing that the plaintiff was about to attack the police checkline at close range, and that the plaintiff’s act might cause injury to others, Police Officer A verbally warned the plaintiff to stop approaching the checkline and requested that he leave the scene.  When the plaintiff ignored the warning and continued to approach the police checkline, Police Officer A fired a pepperball round at the plaintiff.

14.In respect of the events on 12 June 2019, the plaintiff complains that he was shot in his abdomen area, and then beaten by some police officers (the “Tim Wa Avenue Incident”).  The plaintiff states that he has not been able to identify the police officer who shot him, or the Superior Officer who authorised such shooting, or the police officers who beat him.

B2.    The DV Incident

15.The second incident concerns 4 August 2019, when a public meeting advocating for the “Five Demands” was scheduled to be held between 5:00pm and 9:00pm at Belcher Bay Park in Kennedy Town.  Whilst the police had issued a letter of no objection for the public meeting, at around 6:46pm that day, a large group of protesters participated in an unauthorised procession from Belcher Bay Park and proceeded towards the direction of Central via Des Voeux Road West and Connaught Road West (ie near the Liaison Office of the Central People’s Government).  During the unauthorised procession, many of the protesters acted in a riotous manner, damaged and vandalised property, and put up barricades on the main carriageways.

16.By 7:00pm that day, a crowd of protestors occupied all four traffic lanes of Des Voeux Road West at the junction of Ka On Street, Connaught Road West and Queen’s Road West, and paralysed traffic in the area.  By around 9:01pm, there were still approximately 100 protesters at the scene, who did not heed the repeated warnings of the police requesting that they leave.  The protesters continued to act in a disorderly manner by chanting slogans and verbally abusing police officers at the scene while remaining on the road.

17.At 9:21pm, the police conducted a sweep westward along Des Voeux Road West from Water Street, and at this juncture, the protesters including the plaintiff sought to flee with a view to evading arrest by the police.  Police Officer B intercepted the plaintiff and arrested him for the offence of “Taking Part in an Unauthorised Assembly”.  According to Police Officer B, the plaintiff then shouted “police assault” and banged his head on the ground three times, and Police Officer B lifted him to try to prevent him from inflicting self-harm.  Police Officer B then removed him to a nearby pavement before he was taken to hospital.

18.The plaintiff claims that on 4 August 2019, he was beaten by several policemen at around the junction of Ka On Street and Des Voeux Road West (the “DV Incident”).  The plaintiff states that he has not been able to identify the police officer(s) who beat him.

19.The plaintiff has indicated that he wishes to bring actions against the various police officers involved in the abovementioned two incidents for: (1) battery; and (2) misfeasance in public office.  As against the commanding officer who authorised the shooting, the plaintiff has indicated that he wishes to bring a claim for negligence.

20.The plaintiff claims that “In order to prove the aforesaid torts, I have been advised that it is necessary for me to be able to first identify the tortfeasors”.  He claims that without the defendant disclosing the identifies of the various police officers involved, he “would be left without any recourse to commence proceedings against the individual tortfeasors”.

C.     RELEVANT LEGAL PRINCIPLES

C1.    Pre-action discovery

21.The court may order pre-action discovery under Order 24, rule 7A(3) of the Rules of the High Court (“RHC”)and section 41 of the High Court Ordinance (Cap 4).

22.Order 24, rule 7A(1) provides that an application for pre-action discovery must be made by Originating Summons, and Order 24, rule 7A(3) provides that an affidavit must also be filed which must:

(1)     State the grounds on which it is alleged that the applicant and the person against whom the order is sought are likely to be parties to subsequent proceedings in the Court of First Instance; and

(2)     Specify or describe the documents in respect of which the order is sought and show, if practicable by reference to any pleading served or intended to be served in the proceedings, that the documents are relevant to an issue arising or likely to arise in the proceedings and that the person against whom the order is sought is likely to have or have had them in his possession, custody or power.

23.As to what the word “relevant” means, Order 24, rule 7A(3A) refers to the words “directly relevant (within the meaning of section 41 of the Ordinance)”.

24.Section 41 of the High Court Ordinance wasamended in the advent of the Civil Justice Reform to extend the procedure to all civil cases (ie beyond personal injuries actions) and itreinforces the fact that pre-action discovery is to be directed at a person who is likely to be a party to subsequent proceedings in the court in which the claim is made, and then states in section 41(2):

“ … a document is only to be regarded as directly relevant to an issue arising or likely to arise out of a claim in the anticipated proceedings if-

(a) the document would be likely to be relied on in evidence by any party in the proceedings; or

(b)  the document supports or adversely affects any party’s case.”

25.Order 24, rule 7A RHC is also subject to Order 24, rule 8(2) RHC and an order for pre-action discovery would not be made “unless the Court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.”

26.The court will order pre-action discovery only if the following requirements are satisfied: Zhang Shouen v Standard Chartered Bank (Hong Kong) Ltd, HCMP 682/2015 (unrep, 15 October 2015), §§21, 25-27.

(1)     The applicant appears to be likely to be a party to subsequent proceedings in the court in which a claim is likely to be made.  In order to satisfy the requirement that a claim is likely to be made, the applicant must show a claim “may” or “may well” be made if discovery is granted.

(2)     The respondent appears likely to be a party to such proceedings.

(3)     The respondent appears likely to have or to have had in his possession, custody or power the document requested.

(4)     The requested document is “directly relevant” to an issue arising or likely to arise out of that claim. “Direct relevance” is shown only if:

(a)     the document would be likely to be relied on in evidence by any party in the proceedings; or

(b)     the document supports or adversely affects any party’s case.

(5)     The applicant must satisfy the court that the order for pre-action discovery is necessary either for disposing fairly of the cause or matter or for saving costs.

27.The first four of the abovementioned requirements must be met for the court’s jurisdiction to arise.  If they are satisfied, the court has a discretionary power to order pre-action discovery, and subject to the fifth requirement, the discretion is an unfettered one to be exercised in all the circumstances of the case.  Importantly, the burden of showing “necessary” (as opposed to mere desirability) rests on the applicant of pre-action discovery: see Zhang Shouen, ibid, §§22 & 32.

C2.    Norwich Pharmacal

28.Where innocent parties are caught up or have become involved in the tortious or wrongful activities of others, thus facilitating the perpetration (or continuation) of such activities, justice may require (and therefore the court may order) that such innocent persons come under a duty to assist the victim of the tort or wrongful activities, by the provision of full information even though such innocent persons cannot be shown to incur any personal liability at that stage.  See A Co v B Co [2002] 3 HKLRD 111, §10.

29.A Norwich Pharmacal order is of an extraordinary nature, and is not an order that a court would lightly grant in the absence of powerful factors.  See A Co v B Co, ibid, §12.

30.The discovery sought must not be unduly wide, and there is no entitlement to general discovery in the Peruvian Guano sense.  See A Co v B Co, ibid, §13(3).

31.Whilst a Norwich Pharmacal order has sometimes been described as a flexible remedy (see Leung Yiu Ting v MTR Corporation Limited[2020] HKCFI 460, §14), a Norwich Pharmacal order remains subject to the requirement for necessity.  The court would not make a Norwich Pharmacal order unless it is a necessary and proportionate response in all the circumstances.  SeeAshworth Hospital Authority v MGN Ltd[2002] 1 WLR 2033, §36; Chan Yim Wah Wallace v New World First Ferry Services Ltd[2015] 3 HKC 382, §25.

32.The “necessity” requirement has also been described by Hoffmann J in Arab Monetary Fund v Hashim (No 5)[1992] 2 All ER 911, 914c-g, as whether, unless discovery has been given, the trial would be rendered nugatory.

33.Following from the requirement for necessity concerns what is meant by “full information” that can be obtained by way of a Norwich Pharmacal order: the third party should provide full information required for the purpose of enabling the plaintiff to identify and sue the tortfeasor, but not information which traverses beyond that.  See Arab Monetary Fund v Hashim (No 5)[1992] 2 All ER 911 914c-e; Documentary Evidence in Hong Kong, 2^nd ed, Hollander, §5-017.

34.Specifically, Norwich Pharmacal applications are not intended to allow applicants to obtain evidence to fine tune their case or identify every person of whatever standing who may have committed an unlawful act.  Langley J, in Nikitin v Richards Butler LLP [2007] EWHC 173 (QB), summarised the law as follows at §§29-30:

“29. I am wholly unconvinced by the case for the Applicants. They have, and indeed assert that they have, quite sufficient information to make claims against the Respondents if they are truly minded to do so… There are no continuing threats. They know the prime movers. In agreement with Mr White's submission, I do not think this relief is intended to enable a victim of unlawful conduct to fine tune a pleading or identify every person of whatever standing who may have committed an unlawful act. I do think, on analysis, and even expressly, that is in reality what the Applicants are seeking.

30. In my judgment it remains the basic principle that disclosure of information occurs by the familiar procedures applicable to proceedings commenced between the relevant parties. Rule 31.16 provides for the exceptional circumstances to which it refers, but again in an adversarial or potentially adversarial context between Applicant and Respondent. Norwich Pharmacal relief is the third and last port of call restricted in its application in the respects I have sought to summarise.” (emphasis added)

35.As explained in Rugby Football Union v Consolidated Information Services Ltd[2012] 1 WLR 3333, §17, “The essential purpose of the [Norwich Pharmacal] remedy is to do justice.  This involves the exercise of discretion by a careful and fair weighing of all relevant factors.”  Various factors were then listed by Lord Kerr in that paragraph as being relevant to whether a Norwich Pharmacal order ought to be made.

36.The firstfactor relevant to the question of whether Norwich Pharmacal relief ought to be granted is the strength of the possible cause of action contemplated by the applicant for the order.  In this regard, there must already be a good arguable case that a wrong has been committed, and merely an honest and reasonable belief that there has been wrongdoing is not enough.  See Ramilos Trading Ltd v Buyanovsky[2016] 2 CLC 896, §§11-12, 14, 17.

37.Another relevant factor concerns, for example, whether the order might reveal the names of innocent persons as well as wrongdoers, and if so whether such innocent persons will suffer any harm as a result.  See Rugby Football Union v Consolidated Information Services Ltd, supra, §17(vi).

38.Whilst the fact that a plaintiff may have sufficient information to commence proceedings is not by itself a bar to Norwich Pharmacal relief, it is a factor to be taken into consideration because if a Norwich Pharmacal order is unnecessary, then given the exceptional nature of such an order, one would not be made.  See A Co v B Co, supra, §27(2).

D.     DISCUSSIONS

39.Whilst the plaintiff frames his application as being for “pre-action discovery and/or discovery by Norwich Pharmacal”, the requirements that need to be met for the two different applications are not the same, and are also directed at different parties.  As further explained in Section D3 below, the plaintiff has failed to fulfil even the basic requirements for making an application for pre-action discovery, and the defendant does not accept that his application is for pre-action discovery at all.  As submitted by the defendant, the plaintiff’s application is, in reality, for Norwich Pharmacal relief.

40.In any event, for the reasons set out below, I agree that the plaintiff’s application must fail, whether it is an application for pre-action discovery or an application for a Norwich Pharmacal order.

D1.    No necessity

41.A question which affects both the plaintiff’s purported application for pre-action discovery, and also the plaintiff’s application for Norwich Pharmacal relief, is that of necessity.  This is addressed first, before turning to problems relating specifically to the so-called pre-action discovery and Norwich Pharmacal relief in turn.

42.In a nutshell, I agree with the defendant’s submission that disclosure of the documents sought by the plaintiff is not necessary.

(1)     It is not correct for the plaintiff to suggest that each of the police officers who had committed a tort must be named.

(2)     It is also not correct for the plaintiff to allege that “it is impossible for the plaintiff to even commence proceedings against [the alleged individual tortfeasors] for the relevant torts”.

43.Put simply, I agree this is not a case where the plaintiff needs identification of the alleged tortfeasors beyond what the plaintiff already knows before the plaintiff can commence (and prosecute) proceedings against those persons.

44.This is not a situation where, for example, a fraud has been committed and the alleged victim does not know who perpetrated the fraud, as is a frequent scenario where Norwich Pharmacal relief is sought.  Rather, in the present case:

(1)     The plaintiff is able to identify Police Officer A by description.

(2)     Similarly, the plaintiff has been able to identify Police Officer B by description and reference to the photographs at Annex B of the OS.

(3)     Further, whilst the plaintiff has not identified the Superior Officer in any photograph, he is able to identify him by reference to Police Officer A, whom the plaintiff is able to describe.

45.Nor is this a situation where a fraud has been committed and the alleged victim does not know how the fraud had been perpetrated.  The plaintiff has been able to describe on affirmation blow-by-blow as to how he says the two incidents occurred.

46.With the information that the plaintiff already has and asserts, the plaintiff is perfectly able to plead a Statement of Claim and to bring a claim against Police Officer A, the Superior Officer and Police Officer B.  Whether the plaintiff’s assertions constitute a good cause of action is another matter.  However, what is clear is that the so-called pre-action discovery or Norwich Pharmacal relief should not be for the purpose of facilitating the plaintiff to “fine tune” his case, still less create a case by weaving around the discovery.

47.Importantly, whilst instituting an action against a defendant who is identified by description is unusual, there is no lack of precedents for this.  This is permissible where the description is sufficiently certain so as to identify both those who are included and those who are not.  See University of Hong Kong v Hong Kong Commercial Broadcasting Co Ltd[2016] 1 HKLRD 536, §§13-14, applying Billion Star Development Ltd v Wong Tak Chuen [2013] 2 HKLRD 714, §§70-74.

48.In Billion Star, the particular context in which the Court of Appeal approved the practice of using a description without naming any individuals in the nomenclature was where a plaintiff was seeking legal redress against a large number of unidentified persons by way of injunctive relief (see §70), but it is clear that this practice is not restricted to situations where there is a large number of intended defendants, or where injunctive relief is sought.

49.Rather, as explained by the English Supreme Court in Cameron v Liverpool Victoria Insurance Co Ltd[2019] 1 WLR 1471, in light of the fundamental principle of justice being that a person could not be made subject to the jurisdiction of the court without having such notice of the proceedings as would enable him to be heard (§17), the key question is whether it is conceptually possible to bring the claim to the attention of the person described as the defendant (§§13-14).  An identifiable but anonymous defendant can be served with a Writ, if necessary by substituted service, as it is possible to locate or communicate with the defendant and to identify him as the person described in the Writ (§15).

50.Importantly, in the present case, the plaintiff is able to identify that Police Officer A, the Superior Officer and Police Officer B are police officers, and can also identify what they are said to have done: thus, it is conceptually entirely possible for the plaintiff to bring proceedings against them by describing them, and serving the Writ on them at their last known address, for example the police headquarters.

51.This is not a situation where the defendant could essentially be any person in the world, rather than someone within a known group of people.  This is to be contrasted with the situation in Cameron v Liverpool Victoria Insurance Co Ltd, ibid, where there had been a hit and run collision, and the claimant was able to identify only the perpetrating vehicle, which was however insured under the name of a fictitious person and the assumed liability insurers, but not the perpetrator (ie not necessarily the owner).  In the circumstances, a description of the accident even with the vehicle identification was held not to be sufficient: see in particular §16.

52.For the avoidance of doubt, it is clear that for the purposes of service, a defendant’s last known address refers to the defendant’s address which is last known to the plaintiff.  It matters not that a different address might have been discovered with further inquiry.  See Cosec Nominees Ltd v Lau Hon Ming [2001] 2 HKLRD 581, 587H-J.  Further, it is well-established that a person may have a number of last known addresses, and it is not necessary for a last known address to be a residential address.  Similarly, it is clear that a person can have more than one usual addresses, which can also be an office address.  See The Hong Kong Mortgage Corp Ltd v Ching Kit Yu & Another, HCMP 2226/2002 (unrep, 15 April 2003), §§11-13.

53.Further, the defendant has already confirmed that Police Officer A and the Superior Officer have been identified, even though Police Officer A is not the officer pictured in the red circle in Annex A to the OS.  See Lee’s Aff, paragraph 15.  The defendant has also confirmed that Police Officer B has been identified.  See Lee’s Aff, paragraph 16.

54.Thus, it is both possible to appropriately describe all of Police Officer A, the Superior Officer and Police Officer B in the nomenclature of a claim, as well as conceptually possible to bring the claim to the attention of those persons.  In the premises, disclosure of the documents sought by the plaintiff to enable him to identify those police officers by name is not necessary, and the plaintiff’s application should fail, whether it be an application for pre-action discovery or an application for Norwich Pharmacal relief.

55.Insofar as Norwich Pharmacal relief is concerned, the fact that a plaintiff may have sufficient information to commence proceedings is not by itself a bar to Norwich Pharmacal relief, but this it is clearly a factor to be taken into consideration because if a Norwich Pharmacal order is unnecessary, then given the exceptional nature of such an order, one would not be made.  Whilst the fact that having enough information to commence proceedings is not a strict “bar” to Norwich Pharmacal relief, given the undisputed requirement of necessity before Norwich Pharmacal relief ought to be granted, it is extremely difficult to imagine when it may be appropriate to grant Norwich Pharmacal relief to an intended plaintiff who already has sufficient information to commence proceedings.  I agree the present case certainly is not one such situation.

D2.    Doxxing

56.Another factor common to both an application for pre-action discovery and Norwich Pharmacal relief is that of discretion and proportionality, with respect to which the court has to consider a wide variety of factors.  In the present case, as submitted by the defendant, an important factor in this regard is that concerning doxxing.

57.For some time, there has been doxxing against police officers in Hong Kong, ranging from suspected offences of criminal intimidation, misuse of personal data, telephone nuisance and fraudulent loan applications, to unlawful disclosure of the personal data of police officers and their family members on public domains, to police officers receiving threats to their or their family members’ personal safety.  In particular, in the present case:

(1)     A video clip capturing Police Officer A has been widely disseminated on the Internet.

(2)     Posters of Police Officer B and his wife being found in the vicinity of his home and school, and he and his family had to move to a new residential address.

(3)     It is also worth noting that in addition to Police Officer A and Police Officer B, the arresting officer who arrested the plaintiff on 12 June 2019 has also been doxed, and his personal data, including address, have been posted online.

58.Regrettably, as Poon ACJHC and Lam VP (as they then were) observed in Junior Police Officers’ Association of Hong Kong Police Force v Electoral Affairs Commission [2019] 5 HKLRD 291, §27:

“ … In light of the present situation in Hong Kong where not an insignificant number of the public appear to have subscribed to the use of doxxing as a weapon against others, including police officers, the availability of the Final Register to the general public does significantly increase the risk of misuse of the Linked Information for doxxing purposes. …” (emphasis added)

See also §§18-20, 30-31 of the judgment.

59.Even if, contrary to the conclusion in Section D1 above, the court considers that disclosure of the information or documents sought by the plaintiff is necessary, the court should still weigh up the concerns over doxxing and the real and substantial risk that the relevant police officers would be subject to continued doxxing activities, and/or even escalated or further doxxing activities, if their identities are disclosed as sought by the plaintiff.

60.In the present circumstances, with the particular issue of doxxing being a serious situation in Hong Kong, the court ought not to exercise its discretion to grant the plaintiff’s application even if all other requirements for the application are met.

61.For completeness, it should be noted that it does not assist for the plaintiff to simply say that no collateral use is permitted of the documents or information even if the plaintiff’s application is granted.  Very simply, no one in Hong Kong should be doxxing police officers, especially not after the grant of the injunction against doxxing of police officers on 25 October 2019 but unfortunately, the injunction needed to be obtained, and even after the injunction was granted, doxxing continues albeit to a lesser extent.

62.The particular problem of doxxing is not one that can be resolved by relying on people to comply with the law.

D3.    Pre-action discovery

63.Turning more specifically to the plaintiff’s characterisation of his application as being one for pre-action discovery, and even leaving aside the insurmountable problem of lack of necessity for the plaintiff’s application (see Section D1 above), there are numerous problems with his application for pre-action discovery.

64.First, as a preliminary point, insofar as the plaintiff seeks pre-action discovery, he fails even at the hurdle of what needs to be contained in his supporting affidavit.  As stated in paragraph 22 above, Order 24, rule 7A(3) RHC provides that the affidavit in support must, inter alia, state the grounds on which it is alleged that the applicant and the person against whom the order is sought are likely to be parties to subsequent proceedings in the Court of First Instance.

65.In the present case, the plaintiff has taken out this application under the OS against the defendant for and on behalf of the Commissioner of Police, but the plaintiff has not stated that the Commissioner of Police is likely to be a party to the action which he intends to bring.  This is a matter of significance going to jurisdiction.

(1)     Insofar as the alleged causes of action are concerned, the plaintiff has made allegations of tortious conduct against various police officers, but not the Commissioner of Police.

(2)     Further, the plaintiff has emphasised that he wishes to bring proceedings against “the individual tortfeasors” that he alleges have committed the battery, misfeasance of public office or negligence.

(3)     The plaintiff has in fact put forward a point in his affidavit evidence that the government cannot be vicariously liable for one of the plaintiff’s intended causes of action, namely, misfeasance of public office.

(4)     As indeed, in the plaintiff’s skeleton at paragraph 56(7), it is even postulated that the Commissioner of Police might not even be vicariously liable.

66.Rather, the plaintiff’s affirmation has only focused on alleging that the Commissioner is the only or only practicable source of information of the various information that he seeks. 

67.Whilst the plaintiff has in his skeleton now said that the Commissioner of Police “would appear likely to be an additional defendant to such proceedings for the purposes of establishing vicarious liability”, this is a belated suggestion and does not solve the problem of this not being stated in the plaintiff’s affirmation in support of his application in order to comply with Order 24, rule 7A(3)(a).

68.The lack of any such statement in the plaintiff’s affidavit evidence shows that the plaintiff is not in fact serious about bringing proceedings against the Commissioner of Police based on vicarious liability: rather, the plaintiff’s focus has all along been on the police officers whom he alleges are the individual tortfeasors (see letter before action dated 15 October 2019 referring to “an intended civil claim against the Commissioner’s police officers” as “the Intended Defendants”).

69.Secondly, the requested documents are not “directly relevant” to an issue arising or likely to arise out of the claim in the anticipated proceedings in the sense explained in paragraph 24 above.  In fact, documents sought under the OS are not the usual type of documents sought under a pre-action discovery application, namely documents which would be likely to be relied on in evidence by any party in the proceedings, or would support or adversely affect any party’s case.

70.It has now been clarified in the plaintiff’s skeleton that the request for the documents sought in the Schedule to the OS in fact focuses purely on the question of identification of certain police officers (rather than anything beyond that).  As such, the nature of the plaintiff’s application is more for Norwich Pharmacal relief than pre-action discovery.

71.It should also be added that insofar as the documents referred to in the Schedule of the OS may be relevant to issues other than the identity of the relevant police officers, there would of course be the usual process of discovery after the plaintiff commences an action.

D4.    Norwich Pharmacal relief

72.Even if the plaintiff puts the focus on seeking Norwich Pharmacal relief rather than pre-action discovery, there are numerous problems in addition to lack of necessity as discussed under Section D1 above.

73.First, the discovery sought by way of Norwich Pharmacal relief must not be unduly wide, yet given that the plaintiff has made clear that his application is for the purposes of identifying Police Officer A, the Superior Officer and Police Officer B, it is duplicative, too wide and unnecessary for the plaintiff to seek all of paragraphs 1, 2 and 3 of the OS.

74.In short, even if it is to be assumed that the plaintiff needs the identities of the individual officers in order to commence an action against them, the relief under paragraph 1 of the OS would suffice.  Hence, the discovery sought in paragraphs 2 and 3 of the OS (as read with the Schedule) is utterly unnecessary and/or irrelevant.  On a proper analysis, the belated “concession” made in paragraph 76 of the plaintiff’s skeleton regarding the width of the Schedule is unavoidable.

75.Further and in any event, even leaving aside the lack of necessity explained in Section D1 above, paragraph 1 of the OS is, on its face, also too wide.  Since the alleged necessity is to achieve identification of the three police officers in question so that the plaintiff can commence proceedings, it is unnecessary for the plaintiff to be provided with the unique identification number, rank and assigned units of the police officers.  In so far as may be necessary, the officers’ names would suffice for the purposes of identification in the writ of summons.

76.The submissions made by the plaintiff at paragraph 52 of the plaintiff’s skeleton seek to expand beyond the question of identification in an attempt to show the relevance of such information, but such an attempt to expand the alleged relevance of such information goes beyond the scope of the way in which relief was sought in the OS and the way that supporting evidence was filed in the plaintiff’s two affirmations. Such purported expansion by skeleton cannot be permitted.

77.Further, the plaintiff has singularly failed to explain why such information is necessary, particularly at the present pre-action stage: there being no dispute over the fact that the three police officers in question are police officers, and there also being no dispute that the Superior Officer was the commanding officer of Police Officer A during the Tim Wa Avenue Incident.

78.After the plaintiff commences proceedings against Police Officer A, for example, discovery concerning the Tim Wa Avenue Incident will be given.  Thus, even if there arises a dispute about whether Police Officer A is the person who shot the plaintiff, that would be an issue with respect to which discovery would be given under the normal rules of discovery.

79.It must be remembered that the plaintiff chose to make the present application before having commenced proceedings against, inter alios, Police Officer A, premised upon the purported need to have the name of the relevant police officers in order to commence proceedings.  In the premises, the plaintiff cannot be permitted to expand his application by way of submission in his skeleton. 

80.Further, it has already been explained in Section D1 above that not even the police officers’ names are necessary, and their last known address (being the police headquarters) is already known. Thus, the plaintiff should not even succeed on paragraph 1 of the OS at all.

81.Secondly, as explained at paragraphs 35 and 36 above, there must already be a good arguable case that a wrong has been committed, and merely an honest and reasonable belief that there has been wrongdoing is not enough.

82.Insofar as the alleged battery and misfeasance of public office of Police Officer A and Police Officer B are concerned, I agree the plaintiff fails to show that there is any good arguable case that Police Officer A or Policer Officer B committed any such tort against the plaintiff.

(1)     Whilst the plaintiff tries to allege that he was not engaged in any unlawful activities, the fact is that both alleged incidents took place when the plaintiff was at the scene of unlawful assemblies or processions and, on the defendant’s case, participating in the various protest activities.

(2)     The plaintiff has hitherto only provided a medical report in respect of the alleged injuries sustained in the Tim Wa Avenue Incident but not the DV Incident.

(3)     In any case, no substantial injury is shown in the medical report.  It is however notable therefrom that the “saddle and perineal anesthesia [ie lack of sensation in the buttock and groin area] was known to be pre-existing, related to his history of spinal cord tumour”.  Pausing there, it has yet to be confirmed whether such spinal cord tumour was cancerous (ie malignant) as the plaintiff claimed to be a “cancer survivor”.

(4)     Notably, the alleged “numb around my groin area” after the DV Incident coincides with the pre-existing “saddle and perineal anesthesia”.

83.In gist, the plaintiff’s complaint was that unreasonable or disproportionate force was used on him by the police officers in the two incidents.  However, the foregoing analysis suggests that whatever injuries were alleged to have been sustained by the plaintiff in the two incidents, it could not have been too serious.

84.It would come as no surprise to the plaintiff that the defendant’s case is that the police officers on the scene at the two incidents used such force as may be necessary, and acted in good faith at all times, and should not be held liable in any proceedings for the alleged injuries which the plaintiff claims to have suffered.  See: sections 45, 46 and 53 of the Public Order Ordinance, Cap 245.

85.In light of the foregoing analysis, it does appear that the plaintiff is motivated by his perceived “right and entitlement to require individual police officers to personally account for their tortious conduct towards him” (the plaintiff’s skeleton at paragraph 5) rather than claiming for damages for unspecified “potentially serious and long-term personal injuries” which is hitherto not supported by any medical evidence.

86.I find that the plaintiff is merely seeking to “fish” for a case or “fine tune” his perceived case in his purport to seek Norwich Pharmacal relief.

87.For the above reasons, the plaintiff’s attempt to seek Norwich Pharmacal relief must fail even if the plaintiff is able to show necessity (which, as explained in Section D1 above, he is not able to).

E.     CONCLUSION

88.In the premises, I order that the plaintiff’s application under the OS be dismissed in its entirety.

89.I further order that the costs of the application be paid by the plaintiff to the defendant, such costs are to be taxed if not agreed (with a certificate for 2 counsel).

90.The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same.

91.Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.

Mr Earl Deng and Mr Geoffrey Yeung, instructed by Messrs S T Cheng & Co, for the plaintiff

Mr Raymond Leung, SC, leading Ms Queenie Lau, instructed by Department of Justice, for the defendant