Law Sze Yan v. The Chinese Medicine Practitioners Board of the Chinese Medicine Council of Hong Kong

HCAL 41/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 41OF 2005

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BETWEEN

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Before : Hon Chu J in Court

Date of Hearing : 28 October 2005

Date of Decision : 28 October 2005

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DECISION

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1.There are before the court two applications taken out by the applicant by way of summonses filed on 21 September and 26 October 2005.  They are applications for discovery under Order 24 rules 7 and 11of Rules of High Court.  Four categories of documents are involved. 

2.The principles for discovery in judicial review proceedings are set out in Philip Engelman, Commercial Judicial Review (2001), paras.13-011 to 13-021.  I will only mention three that are directly relevant to the present applications.

3.Firstly, discovery is not automatic in judicial review proceedings.   On the contrary, it is rarely allowed.

4.Secondly, discovery will not be ordered unless the applicant satisfies the court that evidence is available to establish a breach of duty by the respondent. In R v Inland Review Commissioners ex parte National Federation of Self-Employed and Small Business Limited [1892] AC 617 at 654, Lord Scarman made the same point and said further that discovery “should be limited strictly to documents relevant to the issue which emerges from the affidavit”. This is a higher test than that for discovery in general civil actions.

4. Thirdly, the court will only order discovery or cross-examination if it considers that the respondent’s affidavit evidence is misleading or is, in a material respect, incomplete.  The threshold test of whether discovery is appropriate and necessary is whether there are grounds for suspecting unlawfulness: see the cases cited in Engelman, paras. 13-018 & 13-019, and R v Secretary of State for the Environment ex parte Doncaster Borough Council and Others [1990] C.O.D. 441. 

5.Miss Tsui argues that the passages quoted in paragraph 6 of Mr Kwok’s submissions from the case of Doncaster Borough Council only applies to cases where the challenge is based on perversity.  Looking at the case and also reading the passages in context, I do not feel able to accept the submission.  The case and the judgment of Leggett LJ reflect what are accepted to be the tests relevant to discovery applications in judicial review.

6.With the relevant principles in mind, I turn now to the applications.  At the outset, I note that the affidavits in support of both applications merely make bare assertions that the documents sought are relevant and are required for disposing fairly of the cause or matter.  They give no clue as to the basis or the reasoning for coming to this conclusion.  Accordingly, the court can only look at the submissions to see whether these assertions are made out.

7.Having regard to counsel’s written and oral submissions, two things are clear.  Firstly, the applicant makes no assertion that the affidavit filed on behalf of the respondent, including what was said in relation to the reasoning and deliberations of the Board, the Council and the relevant Committee, is inadequate, incomplete or untruthful.  Secondly, it is not the applicant’s contention that the documents now sought contain evidence of breach of duty on the respondent’s part. 

8.I come to this conclusion on the basis of paragraphs 18(iv) to (vi), 20 and 22 of Miss Tsui’s first set of written submissions, and paragraphs 8(iii) and paragraph 9(ii) of the supplemental submissions.  The points made in these paragraphs boil down to this: the applicant wishes to find out more about the respondent’s deliberation process or reasoning process, so as to see how the applicant’s case may be improved in terms of evidence or better put in terms of argument.  Effectively, the applicant hopes that the discovery will produce materials that will afford him with better arguments and will help to justify his challenge that there had been unequal treatment. 

9.What the applicant hopes to achieve through these applications is not permissible under the law.  It is contrary to the authorities: see Lord Scarman’s judgment in the National Federation of Self-Employed and Small Business Limited case, supra, R v Secretary of State for the Environment ex parte Islington London Borough Council [1992] C.O.D. 67, 68 and R .v. Secretary of State for Foreign and Commonwealth Affairs ex parte World Development Movement Limited.

10.Therefore, the applications do not meet the tests required of discovery applications in judicial review proceedings.  Accordingly, I dismiss both summonses.  The costs of the applications be paid by the applicant to the respondent in any event, to be taxed if not agreed.  The applicant’s own costs be taxed under the Legal Aid Regulations.

Miss Winnie Tsui, instructed by Messrs Tang, Lai & Leung, for the Applicant.

Mr Kwok Sui-hay, instructed by Messrs Lo & Lo, for the Respondent