L v. Secretary for Justice on behalf of the Commissioner of Police

HCA 659/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 659 OF 2005

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BETWEEN

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Coram : Before Master J. Wong in Chambers

Date of Hearing : 30 January 2007

Date of Decision : 13 February 2007

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D E C I S I O N

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Application

1.This is an application for specific discovery under Order 24 rule 7 of the Rules of the High Court (“RHC”) and the inherent jurisdiction of this Court.

Preliminary matters

2.At the hearing on 30 January 2007, Ms. Julia Lau, Counsel for the Plaintiff handed up to this Court an Amended Summons.  She proposed to pursue her application on O.24 r.7 rather than O.24 rr.11(2) & 11A RHC.  Mr. Edward Shum, Counsel for the Defendant opposed to it.  Upon having satisfied that the crux of the parties’ argument lied on the relevancy of the discovery sought and that the Defendant would not suffer any real prejudice by the amendments sought, I allowed the application of Ms. Lau and reserved costs to be decided.

Background

3.On 14 April 2005, the Plaintiff in the name of “L” commenced the present proceedings against the Police as Defendant.  L said that he was an informer of the Police at the material times.  He provided crime information to a police constable (the “PC”) leading to a successful arrest and subsequent conviction of offenders involving drugs trafficking in HCCC 328/1999.  However, the Defendant thereafter not only refused to pay him reward money but also laid charge against him together with other offenders.  Later, when L was brought before the Eastern Magistracy, the charge against him was withdrawn.

4.L sought assistance from the Director of Legal Aid who assisted him in bringing the present proceedings for damages caused by malicious prosecution.

5.The Defendant denied the claim and filed its Defence on 25 May 2005.

6.So far, L has filed his list of documents and witness statements from him and his wife.  The Defendant also produced a number of lists as well as witnesses statements of the PC and other responsible senior officers.  The following documents have also been disclosed:

(a)	Transcript of the video-recorded interview of L on 26 and 27 May 1999;
(b)	Covering Report of the Narcotics Bureau dated 13 July 1999;
(c)	Transcript of L’s evidence (as defendants’ witness in HCCC 328/1999) in court from 29 to 31 March 2000;
(d)	Extracts of CAPO Report about the PC and the officer in charge of the case.

7.As the matter has developed, it is undoubtedly that there will be quite some factual disputes in the coming trial, especially between L and the PC.  Nonetheless, the followings are not disputed or are indisputable:

(a)	L was an informer.
(b)	However, he was not registered as such under the police record.
(c)	L complained against the PC and his supervisor.  After detailed investigation, CAPO registered against each of them for a respective count of neglect of duty (other than reported) but not other more serious allegations.  The PC failed to maintain proper records relating to the cultivation of L as a police informer and the contacts with him.  On the other hand, the supervisor also failed to direct any action to intercept the vehicle carrying L away from the crime scene.

8.As suggested by Mr. Shum, and not disputed by Ms. Lau, L based his action upon (1) wrongful arrest and detention, and (2) malicious prosecution.  Since there is no dispute that L was arrested, detained, prosecuted and discharged, the issue to be tried is therefore: whether the Police did so maliciously and without reasonable and probable cause.

The Specific Discovery

9.With the above background in mind, I now turn to Ms. Lau’s application.  She seeks to have:

(1)	all guidelines/directions/instructions/orders issued by the Hong Kong Police in handling/dealing with informers;
(2)	all guidelines/directions/instructions/orders issued by the Hong Kong Police in the (i) calculation and (ii) payment of rewards to informers; and
(3)	all guidelines/directions/instructions/orders issued by the Hong Kong Police in the registration of informers.

The Law

10.The general principles relating to discovery under O.24 r.7 RHC can be located at page 458 HKCP 2007:

“… (1) There is no jurisdiction to make an order under RSC, O.24, r.7, for the production of documents unless (a) there is sufficient evidence that the documents exist which the other party has not disclosed; (b) the document or documents relate to matters in issue in the action; (c) there is sufficient evidence that the document is in the possession, custody or power of the other party.  (2) When it is established that those three prerequisites for jurisdiction do exist, the court has a discretion whether or not to order disclosure.  (3) The order must identify with precision the document or documents or categories of document which are required to be disclosed, for otherwise the person making the list may find himself in serious trouble for swearing to a false affidavit, even though doing his best to give an honest disclosure …”

The Ruling

11.Upon considering all the evidence submissions and authorities before me, I have come to the conclusion that L’s summons is to be dismissed.  L has failed in a number of aspects.

Relevancy?

12.Mr. Shum did not dispute that the documents existed and was within the power of the Defendant.  However, he disputed that documents were relating to matters in issue for trial.  Ms. Lau argued otherwise.  I agree with Mr. Shum.

(a)

Mr. Shum submitted that the documents sought could hardly be relevant under the existing pleadings, the starting point to determine relevancy.  It has never been L’s pleaded case that the PC or his seniors failed to comply any guidelines/directions/ instructions/orders of the Police in handling registering and paying L as an informer. With respect, Ms. Lau was unable to deal with this submission by reference to the present pleadings.

(b)

Ms. Lau attempted to save her client’s case by persuading me to accept that she had a difficult case to prove in the coming trial herein.  L had to prove that the prosecution was brought maliciously and without probable and probable cause.  Such difficulty is understandable but does not advance Ms. Lau’s application.  It only means that L is de facto fishing for evidence to assist him in pursing his case.

Discretion?

13.Having satisfied that the documents sought are not relevant, I need not go further to exercise my discretion at all.  However, assuming that I should be so doing, L still fails because the discovery is not necessary either for disposing fairly of the cause or matter or for saving costs.

14.The Defendant has made extensive discovery in relation to the proceedings, including the Covering Report of the Narcotics Bureau, extracts of the CAPO Report and witnesses statements of all officers involved.  Hence, in short, the Police have given an explanation, supported by relevant internal documentation, as to why and how L was prosecuted.  It is then for the trial judge to decide if such explanation is accepted or not.  Hence, the discovery sought will only increase costs unnecessarily and impose extra burden upon the court with further documents which do not assist him or her to resolve the parties’ dispute.

Costs

14.There appears to be no reason why costs should not follow event.  Counsel’s assistance is useful to me.  I therefore make an order nisi that costs of the application, including all costs reserved and Certificate for Counsel for hearing on 30 January 2007, be to the Defendant and borne by L, to be taxed if not agreed, in any event.  L’s own costs are to be taxed in accordance with Legal Aid Regulation.

Ms. Julia Lau, instructed by Messrs. William Sin & Co. for the Plaintiff.

Mr. Edward Shum, instructed by Department of Justice.