K v. Tam Chau Long and Another

DCEO 15/2023

[2025] HKDC 1587  

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO. 15 OF 2023

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DECISION

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1.There are two applications, both dated 9 July 2025, made by the Claimant before this Court for leave to:

1)  Serve Interrogatories on the 1^st and 2^nd Respondents under Order 26 of the Rule of the District Court, Cap. 336H (“RDC”) (the “Interrogatories Application”);

2)  Issue Writs of Subpoena duces tecum against 7 individuals under Order 38 rule 14 of the RDC (the “Subpoena Application”)

The Interrogatories Application

2.The starting point is Order 26, rule 1 which stated:

(1) A party to any cause or matter may apply to the Court for an order—

(a)  giving him leave to serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter; and

(b)  requiring that other party to answer the interrogatories on affidavit within such period as may be specified in the order.

(2)An application under this rule shall be made by summons or by notice under Order 25, rule 10 and a copy of the proposed interrogatories shall be served with the summons or notice. (L.N. 153 of 2008)

(2A) On the hearing of an application under this rule, the Court shall give leave as to such only of the interrogatories as it considers necessary either for disposing fairly of the cause or matter or for savings costs; and in deciding whether to give leave the Court shall take into account any offer made by the party to be interrogated to give particulars, make admissions or produce documents relating to any matter in question. (L.N. 153 of 2008)

(3)A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) shall be disallowed notwithstanding that it might be admissible in oral cross-examination of a witness.

3.The principles are trite and summarised in New Shipping Limited v Lau Wing Yan [2020] HKCFI 2933 as follows:

1)  Interrogatories must relate to a matter in question between the parties. They are not confined to the facts directly in issue, but extend to any facts the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue.

2)  They must be necessary either: (i) for disposing fairly of the cause or matter; or (ii) for saving costs.

3)  Interrogatories must not be oppressive, prolix or imprecise. They must not be questions which go to the evidence the opposing party intends to adduce, nor questions which require an answer which is a matter of opinion.

4)  Interrogatories must not be “fishing” in the sense that they were made or aimed: (i) to enable the party to see if he can find a case, of which at present he knows nothing and which will be a different case from that which he currently makes; (ii) to ascertain the names of witnesses whom the applicant may wish to call; or (iii) to establish a cause of action against a third party or to obtain evidence in subsequent proceedings.

5)  Interrogatories which relate solely to credit or credibility are not allowed.

6)  In the exercise of the court’s wide and unfettered discretion, the key consideration is the factor of necessity. Necessity is a stringent test, and the interrogator must be able to show that his interrogatories will serve a clear litigious purpose.

4.As for the “test for necessity”, it was held in Ng Shek Wai v Hong Kong Institute of Certified Public Accountants [2019] HKCFI 2439, under paragraphs 35 and 37 of that decision:

“The test of necessity is a stringent one and is not necessarily satisfied because the subject matter of the interrogatories is relevant. While the prospect of minor incremental advances being established by the answers may suffice, the less an interrogatory appears to be targeted at the core issues in the proceedings, the more likely a court will be to exercise an adverse discretion to its employment…

…

“Finally, even where interrogatories are relevant and necessary, the court should order the interrogatories to be withdrawn where they are oppressive or prolix:

(1)Interrogatories are oppressive if the answer cannot be given without a prolonged examination of the respondent’s record, with expenditure of much time and trouble…

(2)In determining whether the interrogatories are prolix, the court should look at the request as a whole. If the interrogatories as a whole are prolix it is no answer to say that there are in the set of interrogatories here and there some might be admissible if they stood alone…”

5.Firstly, even by taking a preliminary look, the interrogatories are clearly prolix: the interrogatories raised against the 1^st Respondent come to 44 pages and 43 headings. The total sub-headed questions come to over 430 in number. As for the interrogatories against the 2^nd Respondent, this come to 59 pages and 57 headings, and the sub-headed questions come to almost 600 in total.

6.The sheer length and character of interrogatories alone could amount to “oppressive by reason of prolixity” (Sit Ka Yin Priscilla v Equal Opportunities Commission and Others DCEO 11/1999).

7.Indeed, this goes well beyond the Sit case (when some 150 questions and sub-questions were raised): the sheer volume of interrogatories here borders on the ridiculous.

8.It will be a complete waste of the court’s time to deal with each and every interrogatories. Suffice to say that, in summary, the Claimant was simply aiming to challenge and to test almost every aspect of the evidence raised by the respondents. For example, seeking information on almost every minute details; “fishing” for the source or documents supporting such details (e.g. asking for records, minutes etc.); asking the witnesses to define the meanings of various terms used, seeking opinion of the witnesses (sometimes speculatively on assumption of various scenarios); seeking information beyond the ambit of the case (e.g. details concerning the organisation, management and decision making process of the 2^nd respondent) etc.

9.As I have pointed out in court, this is an Equal Opportunities claim and it should not be complicated. Based on my preliminary understanding of the case, the Claimant’s case was that she had a disability and suffered from discrimination, harassment and unfair treatment by the respondents for some 8 months, accumulating in her dismissal. The respondents’ case was that she was dismissed due to unsatisfactory work performance etc.

10.This should be the matter in question and the interrogatories have clearly strayed far beyond it.

11.In reality, most are questions that the Claimant might wish to raise under cross-examination. She will have plenty of opportunity to do so at the trial (subject to the condition that the cross-examination similarly needs to be relevant). It is not the purpose of interrogatories to perform a pre-trial round of cross-examination. This is totally unnecessary and only serves to increase, and not save, costs.

12.As a passing observation, even if these were questions under cross-examination of a witness, I doubt that I have presided over any trials when more questions were raised by counsels.

13.As such, the interrogatories should not be allowed.

The Subpoena Application

14.Order 38 rule 14(5) of the RDC provides that leave is required from a judge or the master whose role is stated as follows:

“But it is only a filter process. He will ask himself such questions as: are the proceedings of such a nature as one would expect evidence to be called? Is this a case or matter being heard in chambers in which oral evidence is appropriate? Is the application for a subpoena an abuse of process? Provided the answers to such questions are in favour of the applicant, he should give his note and grant leave. That filter process is one in which the judge should not and cannot take it upon himself to decide issues relating to the relevance of any evidence that may be given and its usefulness.” (Li Wai Tat v Li Man York [1998] 1 HKLRD 121)

15.For the current application, which is seeking leave to issue Writs of Subpoena duces tecum, the following principles apply (To Kan Chi & Ors v Pui Man Yau & Ors, 18 June 1998 CACV 000117/1998):

(a)  There shall be no discovery from a non-party to an action subject to certain exceptions…;

(b)  A subpoena should not be used for making discovery only;

(c)  A subpoena should not be used as a fishing exercise for documents nor speculative;

(d)  A subpoena should not be oppressive to the witness when, say for instance, the terms are too wide. The party issuing the subpoena has to show that these witnesses are required to produce relevant and admissible evidence for trial and that those documents to be produced must be required and are necessary for the fair disposal of the case.

16.Indeed, it has been held that a party cannot get general discovery by way of a subpoena duces tecum and no witness can be expected to go through the process of “sorting through and considering masses of documents in order to comply with a subpoena” (Hsin Chong Construction Co Ltd v Hong Kong and Kowloon Wharf and Godown Co. Ltd [1986] HKLR 987).

17.The courts notes that the Subpoena Applications initially was against 7 individuals but the Claimant, in her written submission, has revised this down to 5.

18.Of these 5 individuals, 3 are board members of the 2^nd Respondent (a certain Mr. Fok, Mr Chan and Mr. Hui).

19.In summary, the Claimant was seeking these 3 individuals to produce documents concerning meeting minutes of certain committees meetings whenever (as I translate) “the Claimant’s alleged conduct and dismissal were raised, investigated and discussed”, whenever “the Claimant’s complaints were dealt with”, Audit Reports from 2013 to 2022, and evidence concerning “employment, dismissal and complaint handling decisions” of the 2^nd respondent etc.

20.First of all, the range of these documents are far too wide and imprecise.

21.Further, I note that it was unclear how, if at all, the Claimant’s case has been discussed or handled in these committees and so seeking such minutes and records were speculative and amount to no more than a fishing exercise.

22.More importantly, I do not think the Court is interested in the 2^nd respondent’s organisation, management and decision making process. I cannot see how such evidence and documents may be relevant and necessary for the fair disposal of the case: the Claimant only needs to prove discrimination / harassment and does not need to show the internal decision making process of the 2^nd respondent which has (allegedly) caused such, nor how that process was (allegedly) flawed. In other words, the court is only interested in finding whether there was discrimination etc., how and why that came about (if it did) would be irrelevant.

23.Of the remaining 2 individuals, one, a certain Mr. Ho, is a staff member of the 2^nd respondent which the Claimant claimed to be familiar with a certain changing lock / security incident. He was requested to make discovery of a wide array of documents concerning “instructions he received to change the locks” etc. Again, I do not see any evidence that any such documents existed so this remains a speculative fishing exercise. More importantly, I cannot see how, by whom or by whatever ways, Mr. Ho was instructed to change the locks would be relevant and necessary for the fair disposal of the case.

24.The remaining individual, a certain Ms. Siu, appears to work for a government department which the Claimant alleged to have regular contact with. Ms. Siu was asked to produce certain government reports and evidence concerning management of the 2^nd Respondent etc. I would imagine that these documents (if relevant) might well be publically available or obtainable by the Claimant. More importantly, as stated above, I cannot see how issues regarding the management of the 2^nd Respondent are relevant and necessary for fair disposal of the case.

25.As such, I would not grant leave for the Subpoena Application.

Other matters

26.Mr. Wong, solicitor for the 1^st and 2^nd Respondents, also raised a concern that the Claimant has submitted various psychiatric and psychological reports with her Affirmation and Written Submission “in support that the Respondents’ conduct caused continuation of Claimant’s disease, bringing psychological pain and obstructing progress of recovery. The Claimant’s mental state would affect her expressive and responsive performance in court…” (paragraph 25(ii) of the Claimant’s Written Submission, as I translated).

27.Mr. Wong was concerned whether the Claimant would rely on such medical reports as expert reports for quantum purposes in which case she would need to make the appropriate application.

28.However, during the hearing, the Claimant clarified that she was only producing these reports to show that she did not wish to prolong the length of the trial in view of her alleged mental state.

29.This was somewhat at variance with what the Claimant claimed in her Written Submission and her conduct so far in the action. Certainly, attempting calling some 7 (or 5) further witnesses would not serve to shorten the trial. One may also observe that the stress of litigation and her mental condition clearly did not stop her from producing some 103 pages with some 1,000 questions as interrogatories.

30.In any case, as I have stated in various other cases, the usual diagnostic process of a psychologist or a psychiatrist may rely mainly (if not entirely) on subjective history provided by the patient. However, the truthfulness of such subjective history is a fact-finding exercise for the court at trial thus the value of such psychology or psychiatric report and the opinion expressed therein, especially at the pre-trial stage, is very limited.

31.Indeed, I note that Dr. Law Chi-wing, consultant psychiatrist at Queen Mary Hospital, fairly stated in her medical report dated 26 March 2025:

“…her report of a series of incidents at work…which she perceived as psychological trauma…was clearly the main precipitating factor of her illness, though I am not in a position to comment on the validity of her accusation with the absence of any objective evidence from her company or any witness…”

32.Nevertheless, given the Claimant’s clarification, it would appear that she did not intend to rely on these medical reports at trial so there would be no need for any application to adduce such.

Costs

33.It is usual that the court will order each party to bear its own costs for claims under the Disability Discrimination Ordinance unless “the proceedings were brought maliciously or frivolously” or “there are special circumstances which warrant an award of costs” (section 73C(3), District Court Ordinance, Cap. 336 (“s73C”).

34.Mr. Wong suggested that the applications were “frivolous since, when objectively considered, it is without foundation and bound to fail” (Lee Chick Choi v The Hong Kong Golf Club [2023] HKDC 1318), and thus sought costs of the applications.

35.I have sympathy to Mr. Wong’s position given that, as I have observed above, the sheer volume of interrogatories raised borders on the ridiculous, let alone the other considerations. There are clear questions on the motive of the Claimant in taking out such applications.

36.Nevertheless, I would allow some leniency to the Claimant. I have given a serious warning in court that, given the costs provision under s73C, the Court places great importance on time and costs proportionality, particularly in view of the nature of this case, so parties should not abuse this provision for ulterior motives.

37.So whilst I will not award costs to the Respondents on this occasion, this shall serve as a warning to the Claimant that the court will not tolerate any waste of time and costs if there is such in the future.

Order

38.I would therefore make the following orders:

a)  The Interrogatories Application and the Subpoena Application be dismissed;

b)  There be no order as to costs; and

c)  The parties shall, within 14 days of this Decision, jointly fix an early date to restore the Case Management Conference.