Brian Alfred Hall v. Secretary for Justice

HCSA 24/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. 24 OF 2006

(ON APPEAL FROM Small Claims Tribunal Claim

No. 32143 OF 2004)

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BETWEEN

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Before : Deputy High Court Judge L. Chan in Court

Dates of Hearing : 3 April 2007 and 12 February 2008

Date of Judgment : 19 February 2008

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J U D G M E N T

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1.On 10 March 2006 an Adjudicator of the Small Claims Tribunal ordered the Secretary to produce a videotape recording to the Claimant.  On 17 March 2006 the Secretary applied for review of this order.  The Adjudicator heard the application on 12 April 2006 and dismissed it.  The Secretary now appeals against both the order and the dismissal of the application for review.

Background leading to order for discovery

2.The Claimant was and still is an inmate in Stanley Prison.  He filed a damages claim with the Tribunal on 5 May 2004.  He alleged in the claim that he had been assaulted seriously by some officers of the Department of Correctional Services on 25 March 2004.

3.The Secretary defends the claim.  The defence stated that the measure taken by the officers of the Department in that incident was reasonable and the force, which was used to subdue the Claimant, was the necessary minimum as dictated by the circumstances.  The Secretary intended to rely on a CCTV videotape recording at the trial of the claim.  The videotape recorded the events that took place at a particular location of the prison from 17:40 to 18:50 hours on 25 March 2004.

4.On 10 March 2006, the Claimant applied to the Adjudicator for an order that the Secretary should serve a copy of the videotape on him.  The Secretary opposed the application and raised various grounds including the question of security in the prison.  The Adjudicator did not find the opposition valid and made the order in favour of the Claimant.

Reasons for not imposing conditions on discovery order

5.The Secretary applied for review of the order on 17 March 2006.  The application was supported by a number of grounds.  The main grounds were the issue of security of the prison and the lack of control on the Claimant’s use of the copy videotape once it is served on him.  The Secretary was willing to undertake to arrange the viewing of the recording by the Claimant at reasonable times upon the Claimant’s request.  The Secretary was also prepared to provide a copy of the videotape to the Claimant subject to its return after the conclusion of the claim.  The Secretary asked the Adjudicator to impose conditions that the Claimant should not make copies of the videotape and that the videotape should be viewed inside the Prison and be returned to the Secretary after the conclusion of the case or the claimant’s release, whichever was earlier, with liberty to apply.  There was a further ground based on the privacy of the officers but that was not pursued on appeal.

6.The Adjudicator heard the application for review on 12 April 2006 and dismissed it.  She gave her reasons for the dismissal as follows:

“

4.

After considered the written and oral submissions made by Mr Siu, the Defendant’s representative, and the Claimant, my view is that the Defendant’s argument of security reason is not acceptable as the CCTV video camera is not hidden camera.  The Claimant is entitled to have a copy of the CCTV video tape recording of the events in Stanley Prison from 1740 to 1850 hours on 25th March 2004 to prepare his case as the Defendant is relying on the substance of such CCTV video tape.  I have no authority to impose any condition to my previous order of 10th March 2006.”

The Adjudicator appeared to have two grounds for dismissing the application.  The 1^st ground was that the CCTV was not a hidden camera and hence the security issue had no merit.  The 2^nd ground was that the Adjudicator thought that she had no authority to impose any condition on her order of production.

The Secretary’s appeal

7.The execution of the order was stayed on 26 April 2006 pending the Secretary’s appeal.  The Tribunal issued the decision on 2 June 2006 and the Secretary applied for leave to appeal on 10 June 2006.  Deputy Judge To granted leave to the Secretary on 9 August 2006 to appeal on points of law.  The Secretary also filed the perfected grounds of appeal on 29 August 2006.  These grounds are:

“	1.	The Adjudicator did not take or did not sufficiently take into account the relevant considerations that Stanley Prison is a maximum security institution where male adult prisoners of high security risk are incarcerated, and that the release of the tape would be prejudicial to the public interest of maintaining security of Stanley Prison as the tape would inevitably disclose sensitive information including the positions at which CCTV cameras are installed inside Stanley Prison, the coverage of the CCTV cameras, the internal setting as well as the security operation of Stanley Prison (i.e. the actual logistical arrangements and deployment of Correctional Services Department’s staff under special circumstances).
	2.	Further or alternatively, the Adjudicator was wrong in law in taking into account an irrelevant consideration and/or having wrongly directed herself or given disproportionate weight to the fact that the CCTV video camera was not hidden camera, and thereby rejecting the Appellant’s overall security concern as better particularized at paragraph 1 hereinabove and failing to give proper consideration to the Appellant’s proposal that the tape should only be viewed by the Respondent and/or his legal advisors within any prison by prior arrangements.
	3.	Further or alternatively, the Adjudicator was wrong in law in holding that she had no authority to impose any conditions to her Order of 10th March 2006 when the Small Claims Tribunal (‘the Tribunal’) has full discretion to order production of relevant documents and exhibits subject to any conditions or restrictions which the Tribunal may deem fit.
	4.	Further to paragraph 3 hereinabove, the Adjudicator was wrong in law in failing to give sufficient reasons for deciding not to impose any conditions to her Order of 10th March 2006 where, as a matter of law, she did have a discretion on the imposition of conditions, the exercise or non-exercise of which required sufficient reasons to be given.
	5.	Further or in the alternative, the Adjudicator was wrong in law in not imposing any conditions reasonably required on the discovery of the copy tape such as, but not limited to, (a) no duplicate of the copy tape should be made by the Respondent; (b) the copy tape should only be viewed by the Respondent and/or his legal advisors within any prison; and/or (c) the copy tape should be returned to the Appellant after the conclusion of his claim (including its appeals, if any) or upon the release of the Respondent from prison, whichever is the earlier subject to further order of the Tribunal with liberty to apply.  Discovery upon the aforesaid conditions should be more than sufficient for the fair disposal of the Respondent’s proceedings.”

Issue of authority to impose conditions on discovery order

8.The Secretary does not agree that the Adjudicator has no authority to impose conditions on her order of production.  Production of documents and records at the Tribunal is governed by section 16(2) of the Small Claim Tribunal Ordinance:

“	The tribunal may summon any witness and require the production of any document, record, book of account or other thing, which is relevant in any proceedings.”

9.The Secretary, however, submitted that the order in question was not made by the Adjudicator by exercising her powers under section 16(2).  The Secretary further submitted that the power in that section is more akin to the power of a superior court to order production of documents and exhibits at the trial or at some other hearing by way of subpoena duces tecum.  It requires the production of documents and exhibits to the court rather than to the parties in the action.  Such power to order production of document is thus different from the power to order pre-trail specific discovery of documents between the parties in an adversarial action.

10.The Secretary further submitted that the order of production made by the Adjudicator was not made directly under section 16(2), but was a more subtle exercise of the Tribunal’s implied judicial authority inherent in its judicial process.  Such implied authority was to ensure a fair hearing between the parties and a fair disposal of the dispute and to prevent wastage of resources.  Since the order was made under the implied judicial authority, the Adjudicator would be able to impose conditions under section 37 of the Ordinance which provides:

“	Where no provision is made by this Ordinance or rules made under section 36, the practice and procedure in the tribunal shall be such as the tribunal may determine, either generally or in any particular proceeding.”

11.Reliance is also placed on the case of PCCW-HKT Telephone Ltd v Telecommuncations Authority [2005] 3 HKLRD 235 where Bokhary PJ dealt with the principle for implying judicial power in para. 36:

“

36.

Absent express power of a particular kind, a question can arise as to whether a superior court has inherent power of that kind.  In regard to an inferior court or tribunal, the equivalent question is whether there is such implied power.  And the correct test for determining whether an inferior court or tribunal has an implied power is, in my view, the one articulated by Dawson J in Grassby v R (1989) 168 CLR 1 at p. 17 and accepted by the other members of the High Court of Australia hearing that appeal.  It comes to this.  An inferior court or tribunal has such ancillary powers as are derivable by statutory implication and are required for the effective exercise of jurisdiction expressly conferred upon it. …” (Emphasis supplied)

Ribeir PJ also dealt with the same in para. 60 of the judgment:

“

60.

… I agree with Mr Justice Bokhary PJ that the proper approach to implying such a power is that set out in Grassby v R (1989) 168 CLR 1 at p. 17, as explained in Pelechowski v Registrar, Court of Appeal of New South Wales (1999) 198 CLR 435: such a power will be implied where it is necessary in the sense of ‘reasonably required’ for the effective exercise of the statutory jurisdiction expressly conferred on the inferior court or tribunal concerned.” (Emphasis supplied)

12.The Secretary thus submitted that the Adjudicator has implied power to impose appropriate conditions on her order.  Since one of the Adjudicator’s grounds or alternative grounds for dismissing the application to review was her lack of power, the Secretary therefore said that her decision was essentially flawed.

13.The Claimant has two alternative stances to the issue of authority.  The 1^st stance is the same as that of the Secretary in that the Claimant also agreed that the Adjudicator has the authority.  But the Claimant argued that the Adjudicator did not mean to say in her decision that she had no authority to impose conditions.  She only meant that it was not the right case for her to do so.  If the Claimant’s reading of the Adjudicator’s reasons of decision is correct, then the dispute is on the merits of the conditions sought to be imposed and not the want of authority.  

14.However, I do not agree with the Claimant’s reading of the Adjudicator’s reasons.  In dismissing the application for review, the Adjudicator firstly said that she did not find the Secretary’s argument of security acceptable as the CCTV camera was not a hidden one.  She then said clearly that she had no authority to impose conditions.  If she should have thought that she had the authority but did not want to do so for want of merits, she would have said so.  I agree with the Secretary that the Adjudicator had decided that she did not have the authority to impose conditions.

15.The Claimant’s alternative stance on authority is opposite to that of the Secretary.  The Claimant submitted that section 16(2) of the Ordinance is to enable production of documents and exhibits, not to inhibit it.  However, the conditions as suggested by the Secretary at the hearings on 10 March 2006 and 12 April 2006, which are now contained in the perfected grounds, are not to enable production, but to restrict the use by the Claimant of the videotape.  Since these suggested conditions would restrict the use of the videotape, the power to impose them is not “reasonable required” and should not be implied.

16.The Claimant further submitted that if it was intended that the Tribunal should have the power to make certain orders, the Ordinance would also provide a mechanism to enforce such order.  Reference is made to section 26A of the Ordinance which provides:

“

26A.

Where the tribunal directs a party to comply with an order within a specified time and the party fails to do so, the tribunal may dismiss the claim or counterclaim filed by the party, stay the proceedings or enter judgment against the party, as the case may be, on such terms as it thinks just.”

Support is also drawn from section 35 which provides for penalty for neglect of witness summons issued under section 16.  The Claimant therefore argued that there should be no power to impose the conditions suggested by the Secretary as there is no mechanism to enforce them.

17.The Secretary in reply submitted that safeguards against abuse of discovery promotes full and frank discovery.  One such safeguard is the implied undertaking of a party to whom documents are produced in discovery that he will not use the documents or any information derived therefrom for a collateral or ulterior purpose without leave of the court or consent of the party making discovery.  This implied undertaking enhances full and frank discovery as explained in para. 13.05 of Disclosure by Matthews & Malek:

“

The primary rationale for the imposition of the implied undertaking is the protection of privacy.  Discovery is an invasion of the right of the individual to keep his own documents to himself.  It is a matter of public interest to safe-guard that right.  The purpose of the undertaking has been to protect, so far as is consistent with the proper conduct of the action, the confidentiality of a party’s documents.  It is in general wrong that one who is compelled by law to produce documents for the purpose of particular proceedings should be in peril of having those documents used by the other party for some purpose other than the purpose of the particular legal proceedings and, in particular, that they should be made available to third parties who might use them to the detriment of the party who has produced them on discovery.  So it has been said that the implied undertaking is more a matter of justice and fairness, to ensure that a person’s privacy and confidentially are not invaded more than is absolutely necessary for the purposes of justice.  A further rationale is the promotion of full discovery, as without such an undertaking the fear of collateral use may in some cases operate as a disincentive to proper discovery.  The interests of proper administration of justice require that there should be no disincentive to full and frank discovery.” (Emphasis supplied)

18.Regarding the machinery for enforcement of the conditions, the Secretary submitted that the Court of First Instance has a protective jurisdiction in relation to contempt of inferior courts.  Improper use of disclosed documents can also be restrained by an injunction granted by the Court of First Instance (see Hong Kong Civil Procedure 2008, paras. 50/04 and 50/08).

19.The Claimant then submitted that discovery ordered by the Small Claims Tribunal is also subject to the said implied undertaking the breach of which can be punished by the Court of First Instance.  Since there is the implied undertaking, it is unnecessary for any further conditions to be imposed on the discovery order.  The Claimant further argued that if any condition is sought to be imposed, an application can be made for such purpose in the Court of First Instance where legal representation is allowed.

Decision on authority

20.There is no dispute that the Tribunal can make pre-trail discovery order whether it be by the power in section 16(2) or by implied judicial power.  If section 16(2) does not contain such power, then such power must be implied.  The dispute is whether the Tribunal can impose conditions on such order.  The Secretary submitted that the Tribunal can do so under section 37 of the Ordinance or by implied judicial authority. 

21.I agree with the Secretary that section 37 has provided the power to impose conditions on a discovery order.  It is not necessary to resort to implied judiciary authority.  However, if need be, such authority should also be implied as it is reasonably required for the effective exercise of the power in section 16(2) of the Ordinance.  Alternatively, it should be implied together with the implied power to order pre-trial discovery to ensure the effective exercise of the Tribunal’s jurisdiction to hear and determine claims. 

22.I do not agree that the power to impose conditions on a discovery order, whether it is contained in section 37 or is an implied power, would operate to inhibit production or discovery.  I think such power is necessary to protect the interest of all parties and to prevent their privacy from being eroded to an extent more than necessary.  The conditions sought to be imposed are merely additional safeguards that are reasonably necessary in this case.  They also promote full and frank discovery.  With the power to impose conditions, the Tribunal may order discovery more readily and with less hesitation.

23.I also do not think the absence of any mechanism in the Ordinance to ensure compliance with the conditions can proscribe the existence of the power for making them.  The imposing of express conditions on a discovery order is in most cases sufficient to warn against and prevent abuse.  The protective jurisdiction of the Court of First Instance further enhances compliance.

24.If the Adjudicator does not have any power to impose conditions and can only rely on the implied undertaking, then the Adjudicator may be reluctant to order specific discovery in cases where abuse is likely. 

25.It is also unrealistic to require the parties to go to the Court of First Instance to ask for conditions to be imposed on the Tribunal’s discovery order.  It would require two judiciary venues to deal with one interlocutory matter.  Furthermore, bearing in mind the jurisdictional limit of the Tribunal, it would be rare for the parties to find it worthwhile to go the Court of First Instance to seek such conditions.

26.On the question of legal representation, all matters before the Tribunal whether interlocutory or final are resolved without legal representation.  I do see why discovery or the introducing of conditions on discovery should be treated differently.

27.In the premises, I agree with the Secretary that the Adjudicator, when dismissing the application to review, had erred in law in holding that she had no authority to impose any condition to her discovery order made on 10 March 2006. 

Issue on the merit

28.I now deal with the other ground of the Adjudicator for not imposing any condition on her discovery order.  The Secretary’s submissions at the application for review were summarised by the Adjudicator in her reason for decision as follows:

“	1)	The Stanley Prison managed by the Correctional Services Department (‘CSD’) is a maximum security institution where male adult prisoners of high security risk are incarcerated.  It is undesirable and inadvisable to release the CCTV recording to the general public, particularly to the Claimant who is an inmate of the Stanley Prison.  The release of the recording will inevitably disclose the positions at which CCTVs are installed inside the Prison, the internal settings as well as the security installations of the Prison.  It will also expose sensitive information about the security and logistical arrangements and deployment of CSD’s staff in the Prison.  Therefore, there is a real risk that the release of the tape to the Claimant will be prejudicial to the security of the Prison as well as the public interest.
	2)	The placing of the CCTV recording in the Claimant’s property will allow him to pass it on to others including outsiders who come to visit him in the Prison.  Once the tape is released to outsiders, there will be no control as to who will have access to the tape and for what purposes the tape will be used.
	3)	(Not pursued on appeal.)
	4)	(Not pursued on appeal.)
	5)	The CSD is willing to undertake to arrange the viewing of the recording in the Prison by the Claimant at reasonable times upon the Claimant’s request.  This should be sufficient for the purpose of the present proceedings.  There appears to be no reason why a copy of the tape must be placed on the Claimant’s property.  Alternatively, there should be conditions imposed such as the tape should be returned at the end of trial.”

Decision on the need to give reason

29.The Adjudicator said at the end of the decision that she had considered the written and oral submissions made by the Secretary’s representative.  But her only reason for not imposing any condition was just that she did not accept the security reason because the CCTV camera was not a hidden camera.  The other reasons advanced by the Secretary as quoted above all appeared to be relevant for her consideration.  She had indeed considered them.  But she did not say why she had rejected all of them.  The need for reason for a decision requires no emphasis.  I would refer to a few passages by Godfrey JA in Lea Tai Property Development Ltd v The Incorporated Owners of Leapont Industrial Building, CACV 137/1995 at pages 2 to 4 on the need to give reasons.  It applies to interlocutory decisions as well as final judgments:

“	…  In my judgment, the right course for a judge of first instance to take on an application made to him for an interlocutory injunction, is to give his reasons (they need be stated only briefly) for granting or refusing it.  I would refer to Capital Properties v. Swycher [1976] Ch. 319, in which Buckley LJ said this (at p325): -
	“	The judge unfortunately gave no reasons for his decision.  This I consider a most unsatisfactory practice.  There are some sorts of interlocutory applications, mainly of a purely procedural kind, upon which a judge exercising his discretion on some such question as to whether a matter should be expedited or adjourned or extra time should be allowed for a party to take some procedural step, or possibly whether relief by way of injunction should be granted or refused, can properly make an order without giving reasons.”
	But generally, as the Lord Justice went on to say: ­
	“	this court is entitled to the assistance of the judge of first instance by an explicit statement of his reasons for deciding as he did. ”
	In Lai Sau Lin v. World Speed Co. Ltd[1990]2 HKLR 317, at pp. 321, 322 Fuad VP cited with approval similar comments made by Cons JA (as he then was) in two earlier unreported decisions, in which Cons JA had said this
	“	The giving of reasons is one of the fundamentals of good administration: [and he cited authority].  Even more so is it one of the fundamentals of a good system of justice.  Lord Denning would have thought that went without saying.  And it matters not whether that decision is final or interlocutory or in what particular court it is given.  The principle holds good for all levels of adjudication.  Parties are entitled to know by what the judge was influenced, particularly the party who has lost.”
	He went on to say: ­
	“	This does not mean that the judge must reduce his reasons to writing.  In the High Court there will usually be solicitor or counsel present who will take a note of what the judge says, and should it ever afterwards be necessary to refer to it, counsel will submit that note to the judge for his agreement.  Nor does it mean a lengthy speech on each and every occasion.  That would be quite unnecessary in most interlocutory matters, where all that is needed is more indication of the ‘why’ as well as of the ‘what’”.
	And:­
	“	Should [the judge] in any instance not give that indication [a general indication of what was in his mind] we consider it to be the duty of counsel, and in particular if there is a possibility that the matter will be taken further, to invite the judge to do so.”
	In the absence of reasons here it seems to me we cannot sensibly assess whether the judge exercised his discretion rightly or wrongly.  …”

30.Since the Adjudicator had given no reason for rejecting the other grounds advanced by the Secretary, there is no way to tell if her decision was correct.  The failure to give reasons for a decision is an error in law as the Adjudicator owes the duty to give reasons as a matter of law.

Decision on the appeal

31.Since I have found that the Adjudicator had erred in law on both issues, I can only allow the appeal and set aside her decision.  Both the Secretary and the Claimant wish to have the matter remitted back to the Adjudicator for reconsideration in the event that I should allow the appeal.  I therefore remit the matter back to the Adjudicator for reconsideration of the Secretary’s application to impose conditions on her order of discovery made on 10 March 2006.  The parties are at liberty to present their respective cases to the Adjudicator afresh. 

32.I also make an order nisi that the Claimant do pay the Secretary the costs of the appeal.

The Claimant (Respondent), in person, present on 3 April 2007

Mr Newman T Y Lam, instructed by Messrs Vidler & Co., for the Claimant (Respondent) on 12 February 2008

Mr Wesley W C Wong, DPGC, of the Department of Justice, for the Defendant (Appellant)