Wong Ping Sung v. Wong Pak Cheung and Another
Read the full judgment text of HCPI 958/1995 on BabelCite. This High Court CFI judgment was delivered on 19 November 1998.
1. This is an appeal from the decision of Master Poon made on 10 th September 1998 wherein it was ordered by Master Poon that the 2 nd Defendant do within 14 days make and file an affidavit by its proper officer stating whether it has or has had at any time in its possession, custody or power the documents specified in the Schedule to the 1 st Defendant's Summons dated 7 th July 1998, namely, all statements, declarations made to the Labour Department by any witness and informant, and obtained by
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HCPI000958/1995
IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 958 OF 1995 -----------------
----------------- Coram: Suffiad J. in Chambers Date of Hearing: 30 October, 6 and 9 November 1998 Date of Ruling: 19 November 1998 ----------------- RULING ----------------- 1. This is an appeal from the decision of Master Poon made on 10th September 1998 wherein it was ordered by Master Poon that the 2nd Defendant do within 14 days make and file an affidavit by its proper officer stating whether it has or has had at any time in its possession, custody or power the documents specified in the Schedule to the 1st Defendant's Summons dated 7th July 1998, namely, all statements, declarations made to the Labour Department by any witness and informant, and obtained by, or on behalf of the 2nd Defendant, being the Defendant in Case No. WS29866/89, and for the purpose of defending the charge and if the said documents, or any of them, has or have been, but is or are not now in its possession, custody or power, stating when they parted with the same and what has become of the same, and further that the costs of this application be to the 1st Defendant in any event. 2. The Notice of Appeal by the 2nd Defendant asks for this Order of Master Poon to be set aside and that in place thereof it may be ordered that the 1st Defendant's Summons dated 7th July 1998 be dismissed with costs to the 2nd Defendant in any event. Background 3. This case arises from the Plaintiff's claim against the 1st and 2nd Defendants for damages arising from personal injuries which the Plaintiff sustained when he suffered an electric shock while working with an electric hammer at a construction site on 24th March 1989. The Plaintiff's case against both Defendants are put on the basis that the 2nd Defendant was the main contractor of the construction site where the Plaintiff was working at the time of the accident, and the 1st Defendant was the sub-contractor of the 2nd Defendant at the said construction site. The Plaintiff alleges that he was employed by the 1st Defendant as a casual worker at the construction site and that the electric hammer and extension lead from the hammer to the wall socket was provided to him by the 1st Defendant. The Plaintiff claims against both Defendants alleging that they were negligent, in breach of statutory duty and in breach of their duty as an occupier of the site under the Occupiers Liability Ordinance. In so far as this claim is concerned, an issue has arisen between the 1st and 2nd Defendants in that both the 1st and 2nd Defendants have served notices of contribution and indemnity upon each other in respect of the Plaintiff's claim for damages for personal injuries. The application 4. The application by the 1st Defendant for specific discovery under O.24, r.7 arises from the fact that after the accident to the Plaintiff the 2nd Defendant was prosecuted by the Labour Department in the Magistrates' Court by Summons in 1989 in that, being the proprietor of an industrial undertaking to which the Factories and Industrial Undertakings (Electricity) Regulations applied, it failed to ensure that a portable apparatus operating at a voltage exceeding extra load voltage, namely, a portable electrical hammer, was protected against leakage to earth of current liable to cause electrical hazard, contrary to Regulations 14(b), 31(1) and 31(2) of the Factories and Industrial Undertakings (Electricity) Regulations, Chapter 59. This prosecution by Summons was contested by the 2nd Defendant, and after a full two-day hearing at the Magistrates' Court, the 2nd Defendant was acquitted of the offence specified in the Summons. 5. At the trial of the Summons in the Magistrates' Court, the 2nd Defendant was represented by the same firm of solicitors as they are now represented in these proceedings, namely, Messrs W.K. To & Co. Based on the fact that the 2nd Defendant had contested the prosecution in the Magistrates' Court in 1989, and was acquitted after extensive cross-examination by its solicitor of all the prosecution witnesses, the 1st Defendant wrote, by letter of 4th June 1998, to the 2nd Defendant requesting for copies of all statements and/or declarations made by witnesses to the Labour Department in respect of that prosecution in the Magistrates' Court. This request from the 1st Defendant was followed up by two faxes dated 18th June 1998 and 29th June 1998. 6. On 2nd July 1998, the 2nd Defendant's solicitors replied to the 1st Defendant stating that they were waiting for their client's confirmation of instructions before they could give a reply to the 1st Defendant's request for disclosure of the documents. On 6th July 1998, the 2nd Defendant's solicitors wrote to the 1st Defendant's solicitors stating inter alia:
It appears that before this letter was received by the 1st Defendant, the Summons dated 7th July 1998 was taken out by the 1st Defendant for the specific discovery of the said documents. This Summons was supported by the affidavit of Wong Yuen Hang, Kelly, the solicitor in charge of the case on behalf of the 1st Defendant, in which it was stated that she verily believed that for the purpose of conducting the defence in the Magistrates' Court, Messrs W.K. To & Co. would have, in the normal course of conduct, obtained from the prosecution copies of all the statements and/or declarations made by those witnesses intended to be called, or actually called by the prosecution. 7. This application was contested by the 2nd Defendant and an affidavit of Lee Wai Sang, a solicitor in the firm of Messrs W.K. To & Co., was filed. The affidavit of Lee Wai Sang states in paragraph 3 that before the hearing of the trial of the Labour Department Summons on 13th November 1989, a request was made by the solicitor's firm, Messrs W.K. To & Co., to the Labour Department to ask for a copy of the Brief Facts on 5th October 1989 and a reply was furnished to them by the Labour Department on 23rd October 1989. It was also stated in paragraph 5 of that affirmation that Mr Lee was informed by Miss Toni Ting, an executive of Messrs. W.K. To & Co., that she had consulted the 2nd Defendant's Senior Clerk, Miss Candy Yap, who was told, in turn, by the 2nd Defendant's director Mr Lin Fei, who was at that time in China, that the 2nd Defendant had never been in possession of the documents sought in the Schedule to the 1stDefendant's Summons dated 7th July 1998. 8. By letter dated 16th July 1998, solicitors for the 1st Defendant wrote to the solicitors of the 2nd Defendant stating, inter alia, that if the 1st Defendant will agree to file an affirmation pursuant to O.24, r.7 of the Rules of Supreme Court, the 1st Defendant will withdraw their Summons. This, however, was not acceptable to the solicitors for the 2nd Defendant who, by letter of 20th July 1998, stated that their letter of 6th July has already given an answer to the 1st Defendant's previous request for confirmation whether or not the 2nd Defendants have the statements or declarations made by the witnesses in the Magistrate proceedings. 9. On 4th August 1998, an affirmation of Lin Fei, a director of the 2nd Defendant was filed stating that according to the best of his knowledge, information and belief, the 2nd Defendant has never been in possession of the documents set out in the Schedule to the 1st Defendant's Summons dated 7th July 1998. 10. There is also an affidavit of To Wai Keung sworn on 15th September 1998 (i.e. sworn after the hearing before Master Poon from which this appeal stems). In that affidavit, To Wai Keung states that he is the senior partner of Messrs W.K. To & Co. and he had the conduct of the proceedings in Case No. WS 29866/89 in the Magistrates' Court where the 2nd Defendant was acquitted of the charge after trial on 13th and 14th November 1989. Paragraph 4 of that affidavit went on to state :
The issue 11. From the above, it would seem that the issue is narrowed down and confined to whether the 2nd Defendant has sufficiently answered the 1st Defendant's request for these documents and/or whether the 2nd Defendant has sufficiently and clearly stated that they have never been in possession, custody or power of the documents sought by the 1st Defendant. However, at the hearing of the appeal, Mr W.K. To, appearing for the 2nd Defendant, informed me that the 2nd Defendant was contesting this application by the 1st Defendant as a matter of principle. In this connection, Mr To argued that firstly, the onus is on the 1st Defendant to make out a prima facie case that the 2nd Defendant have the documents sought. 12. Mr To relies heavily on Circular No.42/90 from the Hong Kong Bar Association which is headed "Supply of Prosecution Papers in Magistrates' case". That Circular is dated 24th August 1990 and begins by stating that "After protracted negotiations between the Attorney General's Chambers, the Bar Association and the Law Society, and after consultation with the police, the following agreement has been reached." Paragraph 2 of that Circular states that where the defendant pleads not guilty, and upon request by his legal representatives, they will be supplied with copies of the witness statements, together with translations where available. 13. In his argument, Mr To relies on this Circular to say that prior to August 1990, there was no such regulated practice whereby in prosecutions taking place in a Magistrates' Courts, statements of witnesses will be supplied on request by the prosecution to the Defence. Mr To further argues that since in 1989, there was no such regulated practice and therefore the 2nd Defendant had no power to ask for such witness statements and/or declarations from the Labour Department in respect of the prosecution. Miss Wong on the other hand, acting for the 1st Defendant, counters this argument by pointing to a letter from the Labour Department dated 29th September 1988 (sic) which was received by the solicitors for the 1st Defendant on 30th September 1998. The letter is headed "Release of Witness Statements and Expert Reports to the Defence". Paragraph 2 of that letter reads:
14. The second point taken by Mr To relates to the relevance of the documents sought. He argues that the 1st Defendant has failed to make out the relevance of the documents sought. Alternatively, even if they are relevant, he says that that relevance is minimized in view of the fact that the 1st Defendant has, in their possession, a full transcript of the trial which took place in the Magistrates' Court. Further argument 15. After the initial arguments had been completed by the parties in this appeal, but before I had given my decision thereon, Mr To on behalf of the 2nd Defendant applied to be heard in further submission on law. Despite objection by the Respondent, I granted him leave to make further submissions. 16. His further submission was based on the provisions of the Personal Data (Privacy) Ordinance, Cap. 486 ("the Ordinance"). He submitted that firstly, Messrs W.K. To & Co. as well as the 2nd Defendant are both "data user" within the meaning of the Ordinance. Secondly, that Section 20(1)(b) of the Ordinance obliges them both to refuse to comply with the 1st Defendant's request for the statements/declarations since that request amounts to a "data access request" and that Messrs Wilde Sapte have not furnished them with the consent of those individuals whose personal data are contained in those statements or declarations. 17. Where discovery is concerned, it is usually divided into two stages. Firstly, the discovery which involves the making of a list of documents which are or have been in the possession, custody or power of a party relating to a matter in question in the cause (whether or not an affidavit may be required to verify such list) and secondly, the production for inspection of such documents listed. 18. The short answer to the further argument advanced by Mr To is that even if the Ordinance prevents or prohibits either his firm on the 2nd Defendant from disclosing any personal data that may be contained in the documents sought, it cannot in any way stop him from compliance with the first stage of discovery. 19. Furthermore, Section 20(1)(b) of the Ordinance prohibits a data user from complying with a data access request if the data user cannot comply with the request without disclosing personal data of which any other individual is the data subject unless those other individuals has consented to such disclosure. 20. "Data user" is defined in the Ordinance as:
and "data access request" is defined in Section 18(1) of the Ordinance to be a request by an individual, or a relevant person on behalf of an individual, (a) to be informed by a data user whether the data user holds personal data of which the individual is the data subject; (b) if the data user holds such data, to be supplied by the data user with a copy of such data. 21. It is quite clear from these definitions that firstly, the request for specific discovery by the 1st Defendant from the 2nd Defendant does not come within the meaning of "data access request" as defined in the Ordinance and secondly, that neither Messrs W.K. To & Co. nor the 2nd Defendant could be said to be a "data user". 22. Neither does Section 4 in conjunction with Principle 3 of the Ordinance avail Mr To's argument here for once again Section 4 only applies to a "data user". It may be that the Labour Department is a "data user" as defined, but I am not convinced that either the 2nd Defendant or Messrs W.K. To & Co. come within that definition. 23. Ultimately, I take the view that the Ordinance cannot stand in the way of the specific discovery sought by the 1st Defendant in this case. The Law 24. The principles relating to the application for specific discovery is set out by Cheung J. in the case of Lee Nui Foon v. Ocean Park Corporation (No.1) [1995] 2 HKC 390. The position as stated by Cheung J. can be summarized as follows:
25. Applying these principles to the present case, firstly, there can be no question that the documents, the subject matter of this specific discovery, did exist at one time, at least in so far as the Labour Department is concerned. It is common grounds between the parties that the file for this prosecution kept by the Labour Department has now been disposed of due to the lapse of time. Secondly, from all the circumstances of this case, it is not unreasonable to believe that the 2nd Defendant may have or may have had either possession, custody or power of the documents sought in the sense that even if the documents were not physically within the possession of the 2nd Defendant, these documents may have been kept by his solicitor for the purpose of defending this prosecution in the Magistrates' Court, in which case, the 2nd Defendant would have power or custody over them. Thirdly, there can be no question, in my mind, that the contents of those statements sought by way of discovery is relevant to the present action because not only does it deal with the very accident complained of here, but looking at the transcript of the trial in the Magistrates' Court, the entire case was fought on the cause of the accident to the Plaintiff as well as the fault and the responsibility for that accident. Once relevance of the document sought is made out, it must follow, therefore, that discovery is necessary for disposing fairly of the cause or matter in this action. Furthermore, the class of documents sought has not been defined or described so widely as to include documents which are not relevant to the issue. It must therefore follow, at least prima facie, that the 1st Defendant has made out a case for specific discovery of the documents sought. Discretion 26. Despite the fact that the 1st Defendant has made out a prima facie case, whether or not specific discovery is ordered is a matter of discretion. This discretion is to be exercised having regard to all the surrounding circumstances of the case. When one looks at the letter of 6th July 1998, from Messrs W.K. To to the 1st Defendant's solicitors, and also the affidavit of Lee Wai Sang, as well as the affirmation of Lin Fei, it would appear that the 2nd Defendant's case is on the footing that the 2nd Defendant never had possession, custody or power of these documents. And yet if that was the case, it would have been the easiest of things for the 2nd Defendant to have filed an affirmation to that effect. Indeed, by its letter dated 16th July 1998, the 1st Defendant's solicitors, in paragraph 4 thereof, invited Messrs W.K. To & Co. to file an affirmation to that effect upon which they shall withdraw their Summons. When one looks at the letter of 6th July 1998 from Messrs W.K. To & Co., it merely states that after going through the former file in relation to the Labour Department prosecution, no statements/declarations was found. This offer was not taken up. It does not go far enough to say that those statements/declarations were never obtained or never in the possession of their firm. 27. Looking at paragraph 3 of Lee Wai Sang's affidavit, it merely states that before the hearing of the trial of the said Summons on 13th November 1989, a request was made by their firm to the Labour Department for a copy of the Brief Facts on 5th October 1989, and a reply was furnished to them on 23rd October 1989. Not even the word "only" was used and that statement, on its own, does not remove the possibility of Messrs W.K. To & Co. asking for or obtaining, at some other time, the witness statements and/or declarations in relation to that prosecution. Paragraph 5 of that same affidavit again does not sufficiently answer the 1st Defendant's request. It is based on triple hearsay and to the effect that the 2nd Defendant had never been in possession of the documents set out in the Schedule to the 1st Defendant's Summons dated 7th July 1998. Likewise, the affirmation of Lin Fei merely states the same, namely, that the 2nd Defendant has never been in possession of the documents as set out in the Schedule to the 1st Defendant's Summons dated 7th July 1998. Looking at the affirmation of Lin Fei, it would be reasonable to assume that that affirmation was prepared by the solicitors for the 2nd Defendant for Mr Lin to affirm. Had that affirmation contained not just the word 'possession' but also the words 'custody and power', that would no doubt have been a full answer to the 1st Defendant's request, but that was not the case. 28. Lastly, the affidavit of To Wai Keung states that in 1989 the Labour Department had no practice of releasing copy statements/declarations, if any, to defendants and accordingly their request was only to the Labour Department for the Brief Facts on 5th October 1989. It does not exclude other possibilities of their obtaining the statements/declarations at other times whether requested or not. 29. At the hearing of this appeal, I was given no satisfactory explanation by Mr To, who appeared for the 2nd Defendant, as to why the affirmation of Lin Fei did not contain those two words, namely, 'custody and power' as well. Looking at the way in which this matter has been handled and the incomplete and piece-meal fashion in which answers had been purportedly given by the 2nd Defendant or its solicitors to the 1st Defendant, it has generated even more suspicion than would otherwise have been the case. No doubt it was for this reason that the Master made the order that he did, and if I may say, it is a suspicion which I share. 30. Ultimately, it boils down to this. There has never been a clear and complete answer by the 2nd Defendant or its solicitors that they have never obtained or been supplied with the statements/declarations requested by the 1st Defendant. 31. For these reasons, I shall re-affirm the order made by Master Poon on 10th September 1998. This appeal is therefore accordingly dismissed. There shall also be an order nisi for costs of this appeal to be paid by the 2nd Defendant to the 1st Defendant, such costs to cover the application for further argument by the 2nd Defendant and the hearing of the further argument itself.
Representation: Miss Kelly Wong of M/s Wilde Sapte, for the 1st Defendant Mr Vincent W.K. To of M/s W.K. To & Co., for the 2nd Defendant |