Case Document

HCA001773/1989

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HEADNOTE

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Discovery - Application under Order 24 Rule 7A of RSC for discovery against non-party - notes of evidence in possession of First Clerk, Fanling Magistracy - whether court inhibited by reason of S.35A Magistrates Ordinance.

1989 No. A 1773

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

	WONG SIU-HING & WONG MAN-HING the administratrixes of the estate of YU Loi-lung, deceased.	Plaintiffs

	AND

	LO Che-Keung	1st defendant
	YAU Fook-ping	2nd defendant

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Coram: Hon. Kaplan, J.

Date of hearing: 28 January 1991

Date of handing down judgment: 11 February 1991

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JUDGMENT

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1. On 21 Oct 1986, YU Loi-lung was fatally injured, when his motor cycle collided with a goods vehicle driven by the 1st defendant in the course of his employment with the 2nd defendant, who owned the goods vehicle. Mr YU unfortunately died some 9 hours after the accident.

2. On 10 March 1987, the 1st defendant was convicted, after a trial, of the offence of careless driving and the Plaintiffs who administer the estate of Mr. YU, have pleaded they will rely on the conviction as evidence of the 1st defendant's negligence.

3. A defence dated 13 June 1989 was filed by the 2nd defendant which denied agency and alleged that the deceased caused or contributed to the accident. On 8 July 1989, the 1st defendant filed his defence, and although it admits the conviction, no admissions are made as to the relevance of the conviction to any issue in the action.

4. On 8 January 1991, the Plaintiff issued a summons under Order 24 Rule 7 A of the rules of the Supreme Court, for an order that the first clerk at Fanling Magistracy do make an affidavit stating whether the minutes of proceedings in the relevant case are or at any time have been in the said First Clerk's possession, custody or power, and if not then stating what has become of them.

5. It is fair to point out that the Plaintiffs' solicitors did write to the First Clerk. On 11 April 1989, Mr Paterson-Todd refused the request on the grounds that the victim was not a party to the proceedings, and thus not entitled to a copy. A more recent request was made, and this time Mr. Christie refused the Order by referring back to the earlier reply, and further stated that the Director of Legal Aid, had been supplied with a copy of the Notes of Proceedings in 1990, at a cost of $172.

6. The Magistrate's stand was taken in the light of S.35A of the Magistrates Ordinance CAP. 227 which provide as follows:-

	"Inspection etc. of minute and register
	35A. (1) Every minute taken under section 34(1) and every register kept under section 35(1) shall be open for inspection without fee or reward by --

	(a)	the Chief Justice;
	(b)	the Registrar;
	(c)	a magistrate;
	(d)	any party to the proceedings to which the minute relates or which may be recorded in the register;
	(e)	the Attorney General;
		(Amended, 54 of 1984, s.28)
	(f)	the Director of Legal Aid.
		(Added, 54 of 1984,s.28)

(2) Where a person is entitled under subsection (1) to inspect a minute or register, he shall also be entitled, subject to subsection (3), to have supplied to him by the magistrates' clerk a typewritten copy of the minute or of the relevant extract from the register, as the case may be.

(3) Where a person other than the Chief Justice, the Registrar, a magistrate, the Attorney General or the Director of Legal Aid applies under subsection (2) for a copy of a minute or of an extract from a register he shall, before he becomes entitled to have the copy supplied to him, pay to the magistrates' clerk or other proper officer such fee as may be prescribed. (Amended, 54 of 1984, S.28) (Added, 54 of 1984, s.3)"

7. It is however necessary to point out that in this case the Plaintiffs are not legally aided. I was told that the Director of Legal Aid, obtained the notes for the purpose of considering an application for Legal Aid which was in the event refused.

8. On 18 January 1991, Master O'Donnell dismissed the summons dated 8 January 1991. I have no note of the Master's reasons and no indication was given to me by Counsel as to what prompted the Master to dismiss the summons. Although I am hearing the matter de novo, it is always useful to know on what basis the Master came to his decision. I will assume that he thought S.35A of the Magistrates Ordinance was conclusive of the matter. However the point is nothing like so simple.

9. S. 42 of the Supreme Court Ordinance, provides as follows: (omitting subsection (3) and (4));

"42.

Extension of powers of High Court to order disclosure of documents, inspection of property, etc.

(1) On the application, in accordance with rules of court, of a party to any proceedings in which a claim in respect of personal injuries to a person or in respect of a person's death is made, the High Court shall, in such circumstances as may be specified in the rules, have power to order a person who is not a party to the proceedings and who appears to the High Court to be likely to have or to have had in his possession, custody or power any documents which are relevant to an issue arising out of that claim --

	(a)	to disclose whether those documents are in his possession, custody or power; and
	(b)	to produce such of those documents as are in his possession, custody or power to the applicant or, on such conditions as may be specified in the order --

	(i)	to the applicant's legal advisers;
	(ii)	to the applicant's legal advisers and any medical or other professional adviser of the applicant; or
	(iii)	if the applicant has no legal adviser, to any medical or other professional adviser of the applicant. (Replaced 52 of 1987 s.34) [cf. 1981 c.54 s.34 U.K.]

(2) On the application, in accordance with rules of court, of a party to any such proceedings as are referred to in subsection (1), the High Court shall, in such circumstances as may be specified in the rules, have power to make an order providing for any one or more of the following matters --

	(a)	the inspection, photographing, preservation, custody and detention of property which is not the property of, or in the possession of, any party to the proceedings but which is the subject matter of the proceedings or as to which any question arises in the proceedings;
	(b)	the taking of samples of any such property as is mentioned in paragraph (a) and the carrying out of any experiment on or with any such property."

S.43 of the Supreme Court Ordinance provides as follows:-

"43. Provisions supplementary to sections 41 and 42

	(1)	The power to make rules of court under section 54 shall include power to make rules of court as to the circumstances in which an order under section 41 or 42 can be made; and any such rules may include such incidental, supplementary and consequential provisions as the Rules committee may consider necessary or expedient.
	(2)	Without prejudice to the generality of subsection (1), rules of court shall be made for the purpose of ensuring that the costs of and incidental to proceedings for an order under sections 41 and 42 incurred by the person against whom the order is sought shall be awarded to that person unless the High Court otherwise directs.
	(3)	In sections 41, 42 and 45 --"personal injuries" includes any disease and any impairment of a person's physical or mental condition. (cf. 1970 c.31 s.33 U.K.]"

10. Order 24 rule 7A of the rules of the Supreme Court which deal with applications under section 41 (discovery against likely party before commencement) and S.42 (discovery against non-party) provides as follows:-

" Application under section 41 or 42(1) of the Ordinance (O. 24, r. 7A)

7A.     (1) An application for an order under section 41 of the Ordinance for the disclosure of documents before the commencement of proceedings shall be made by originating summons and the person against whom the order is sought shall be made defendant to the summons.

(2)     An application after the commencement of proceedings for an order under section 42 (1) of the Ordinance for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons, which must be served on that person personally and on every party to the proceedings other than the applicant.

(3)     A summons under paragraph (1) or (2) shall be supported by an affidavit which must --

	(a)	in the case of a summons under paragraph (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 High Court in which a claim for personal injuries is likely to be made;
	(b)	in any case, 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 out of a claim for personal injuries made or likely to be made 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.

(4)     A copy of the supporting affidavit shall be served with the summons on every person on whom the summons is required to be served.

(5)     An order under section 41 or 42(1) for the disclosure of documents may be made conditional on the applicant's giving security for the costs of the person against whom it is made or on such other terms, if any, as the Court thinks just, and shall require the person against whom the order is made to make an affidavit stating whether any documents specified or described in the order are, or at any time have been, in his possession, custody or power and, if not then in his possession, custody or power, when he parted with them and what has become of them.

(6)     No person shall be compelled by virtue of such an order to produce any documents which he could not be compelled to produce --

	(a)	in the case of a summons under paragraph (1), if the subsequent proceedings had already been begun; or
	(b)	in the case of a summons under paragraph (2), if he had been served with a writ of subpoena duces tecum to produce the documents at the trial.

(7) In this rule "a claim for personal injuries" means a claim in respect of personal injuries to a person or in respect of a person's death.

(8) For the purposes of rules 10 and 11 an application for an order under section 41 or 42 (1) shall be treated as a cause or matter between the applicant and the person against whom the order is sought."

11. The formalities set out in this rule have been complied with by the plaintiffs.

12. Mr. Jolly for the First Clerk/Registrar Supreme Court takes his stand on Section 35A of the Magistrate's Ordinance. That he says specifies whom can get copies and whom has to pay. The victim is not included and thus the plaintiffs are not entitled to an Order. I pointed out to him that this resulted in an absurdity. The Director of Legal Aid is entitled to a copy. He was added as one of the parties entitled to a copy in 1984 as was the Attorney General. I do not think it assists me to consider precisely why he was added. It may or may not have been something to do with the introduction of the Supplementary Legal Aid Schemer. Be that as it may, the Director of Legal Aid and the Attorney General are entitled to inspect and get copies apparently without charge. (I know not why the Director of Legal Aid had to pay $172 in this case)

13. Mr. Jolly informed me that up to two years ago a cooperative attitude was shown by Clerks to Magistrates in relation to requests of this nature. That apparently ceased when the alleged effect of Section 35A was appreciated. Mr. Jolly confirmed that no particular problem was experienced in complying with requests of this nature.

14. The absurdity is that if a plaintiff is legally aided the Director of Legal Aid can obtain copies and make such use thereof in the action as is appropriate. The Attorney General who is frequently a defendant in personal injury cases may do likewise. But if the plaintiff is not legally aided then he cannot obtain a copy if the master and Mr. Jolly are correct. That seems an unjust and arbitrary conclusion. Is it correct?

15. Section 35A only states that every minute shall be open to inspection without fee or reward by specified persons. It then goes on to deal with those persons being able to take copies, in most, but not in all, cases, free of charge. This Section would not prevent inspection by others for a fee or reward. I do not read Section 35A as providing for an exhaustive list of persons entitled to inspect to the exclusion of all others.

16. But even if I were wrong in that conclusion there seems to me to be ample power contained in Order 24 Rule 7A underpinned as it is by Section 42 of the Supreme Court Ordinance. I can find no warrant for supposing that it was intended that Section 42 and the rules made thereunder should not apply to notice of proceedings before Magistrates.

17. I cannot foresee that this conclusion will cause any great difficulties. Firstly, most Plaintiffs are legally aided and the Director of Legal Aid is entitled under Section 35A to a copy of the minutes of proceedings. Secondly, the defendant in the Magistrate's Court is entitled to a copy and if he avails himself of that right, then he will have to disclose it in his list of documents, and the plaintiffs will be able to get a copy from the defendant in a normal way.

18. In my judgment, Masters and Judges can be relied upon to see that the jurisdiction contained under Order 24 Rule 7A is not abused, and they will only make orders in appropriate cases. The notes to Order 24 Rule 7A (page 449, 1991 White book) makes it clear that :-

"The Court has a discretion to decline to make an order which would be unnecessary or oppressive or not in the interest of justice or injurious to the public interest .... the power of the Court to order a non-party to produce relevant documents is not fettered, except as provided by the relevant provisions of statute and the rules, and is to be exercised so as to further the proper administration of justice."

19. Further, it is to be noted that in this case the plaintiffs are only seeking an affidavit and not an order for production. If the First Clerk affirms that the documents are indeed in his possession etc., no doubt the plaintiffs will return and ask for an order for production. I do not understand why the summons did not seek this in order to save costs. I could have then ruled on both aspects of the matter. The summons should have sought an order that the First Clerk state on affidavit whether the documents are in his possession etc., and if not stating what has become of them and if in his possession then producing the same to the plaintiffs' solicitors. The Court can then give one ruling on both stages namely the affidavit stage and the production stage.

20. Order 24 Rule 8 has to be noted because it states that:-

"On the hearing of an application for an order under Rule 7A, the Court, if satisfied that discovery is not necessary, or not necessary at that stage of the cause of matter, may dismiss or, as the case may be, adjourn the application and shall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for costs."

21. It by no means follows that discovery will be ordered: see Dolling Baker v. Merret (1990) 1WLR 1205 & Alick Au v. Sir David Ford and others HCMP 2827 of 1990 (27 Nov. 1990 - unreported)

22. The important distinction between Section 35A and Section 42 is that the former is dealing with a practice of Magistrates Courts, exercising a mainly criminal jurisdiction whereas Section 42 is an useful adjunct to the rules of the Supreme Court enabling plaintiffs in personal injury cases to obtain relevant and necessary documents in the possession of non-parties. I can see that if there was uninhibited access to the notes of proceedings in Magistrates Courts such might be abused by busy bodies or spiteful people or those who wish to use the notes for an ulterior motive. But in a civil case for personal injuries the bona fides of the applicant is unlikely to in doubt and in any event the Court represents a more than adequate safe-guard against any abuse.

23. In my judgment, it would be absurd if a non-legally aided plaintiff could not obtain the notes of proceedings relevant to his actions. I am happy that I do not feel in the slightest way constrained to arrive at such a finding. Section 42 of the Supreme Court Ordinance and the rules made thereunder provide a self-contained code for orders of discovery against non-parties and I can see no reason why in the absence of any statutory constraint these provisions should not apply to the First Clerk of the Fanling Magistracy in the circumstances of this case. I have no hesitation in allowing this appeal and granting the relief sought in the summons.

24. As to costs, the person against whom an order is sought is entitled to his costs of and incidental to the application and with complying with every order made thereon. Mr. Jolly informs me that he did not ask for costs below and thus invites me not to make an order on the appeal if I were to be against him as I am. I propose to make the following order nisi namely, that there be no order as to costs on this appeal save that the First Clerk do have the costs (if any) of complying with my order.