Li Zhong v. To Chi Ko and Others

DCEC 595/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 595 OF 2008

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IN THE MATTER OF AN APPLICATION

BETWEEN

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Coram: His Hon Judge Leung in chambers (open to public)

Date of hearing: 6 February 2009

Date of decision: 9 February 2009

DECISION

1.On the basis of an alleged fall from height at work on 29 August 2007, Li (the Applicant) claims compensation pursuant to the Employees’ Compensation Ordinance, Cap.282.  To (the 1^st Respondent), Hung (the 2^nd Respondent) and Richman Properties (the 3^rd Respondent) are being sued as Li’s employer or employers at the material time.

2.To has not appeared so far.  Hung and Richman Properties have filed answers disputing almost all issues.  Lists of documents and witness statements have been filed.  On behalf of Li, the present application was taken out for specific discovery of documents pursuant to O.24, r.7 of the Rules of the District Court.

3.The relevant principles are trite.  It is the burden of the party seeking discovery to show prima facie the followings:

(1)  The document or class of documents exists.

(2)  The party against whom the order is sought has or had in the document in his possession, custody or power: see Hong Kong Civil Procedure 2009, Vol.1 at 24/2/7.

(3)  The document or class of documents relates to a matter in question in the action: see Hong Kong Civil Procedure (above) at 24/2/10.  Any document which, it is reasonable to suppose, contains information which may enable the party applying either to advance his own case or to damage that of his adversary, if it is a document which may fairly lead him to a train of inquiry which may have either of these two consequences is also subject to discovery: see Compagnie Financiere, etc (1882) 11 QBD 55 at 63.

4.The party against whom the order is sought may show that the order should nevertheless be refused if it is not necessary either for disposing fairly of the cause or matter or saving costs: see O.24, r.8; Hong Kong Civil Procedure (above) at 24/8/1.

5.Li is a Mainlander.  He claims that every now and then since 2002, he had been asked to come on two-way permit to Hong Kong to carry out maintenance and gardening work at the house where To and Hung lived.  Most of the time, he dealt with To and was paid by To.  The accident allegedly happened on the day in question when Li was instructed to carry out maintenance work to the windows of the house.

6.What Li claims above inevitably meant that he was in breach of his condition of stay in Hong Kong.  As a result, he was arrested, prosecuted, imprisoned and repatriated.  To was never found.  The investigating police officer recorded in his written report that both the security guard of where the house is located and Hung’s sister confirmed to him that To once resided at the house.  To was said be Hung’s friend.  But To had not been seen for months and could not be located.

7.Hung admits discovering Li in her garden apparently injured on the day in question.  According to her, Li told her that he slipped and fell from the vicinity into her garden.  Hung, on behalf of herself and Richman Properties, deny that they ever knew Li before and that they had any connection with Li or his injury.  Hung also denies that she or Richman Properties ever knows this person by the name of To.  Even the security guard and Hung’s sister mentioned above now joined in denying having ever said what the police officer recorded in his report.

8.It is probably such denial that triggered Li’s investigation and the present application.

9.The registered owner of the house is Richman Properties.  The shareholders and directors of Richman Properties are Hung and one Richman Group Limited.  The shareholders and directors of Richman Group are also Hung and a Vanco Holdings Limited.

10.Vanco is a BVI company.  So the solicitors for Li first wrote to the solicitors for Hung and Richman Properties requesting for the names of the shareholders and directors of Vanco.  The request was refused.  Request for the documents in question was then made and was likewise refused.  Hence the present application.

11.Li applies for 4 specific documents:

(1)  Certificate of incorporation;

(2)  Certificate of incumbency;

(3)  Shareholders’ register showing the record from 2006 up to the present; and

(4)  Directors’ register showing the record from 2006 up to the present.

12.It is clear to me that the first two documents requested could hardly be relevant.  Mr Lam for Li had to agree.  The application really turns on the other two.  Miss Fong for Hung and Richman Properties did not really dispute that these other two documents exist and that they are at least within the power of her clients.  But she argued that they are neither relevant nor necessary.

13.It was argued on behalf of Li that the documents could cast light on whether it is true that Hung and Richman Properties do not know To.  Miss Fong for Hung and Richman Properties disagree.  She described the request as a fishing expedition.  In my view, what may be objectionable about the request for these documents is not so much that this is a fishing expedition.

14.We should remind ourselves of the issues of liability that need to be decided in this case.  They are:

(1)  whether the accident happened as alleged?

(2)  whether there was at the material time any contractual relationship between Li and any of the respondents;

(3)  if yes, whether the relationship was one of employer-employee; and

(4)  if yes, whether the accident happened in and arising out of the course of such employment.

15.The registers of shareholders and directors of Vanco or the identities of the shareholders and directors of Vanco are simply not relevant to the above issues.

16.What Li’s solicitors are interested in knowing is really, and probably only, whether To was or is one of these shareholders and directors.  Mr Lam submitted that as Hung, on behalf of herself and Richman Properties, deny that she ever know To, seeking to know if To’s name was or is on these registers may advance Li’s case and damage the case of Hung and Richman Properties.  In a nutshell, Mr Lam is seeking discovery of these documents with the hope that they may contradict and discredit Hung and Richman Properties.

17.In my view, it cannot be said that contradicting or discrediting Hung and Richman Properties is equivalent to advancing Li’s case against them because, perhaps apart from credibility, this cast no light on any of the issues of liability mentioned above between Li and them.  Like interrogatories, discovery is not normally ordered for the mere purpose of testing credibility of the parties: see Hong Kong Civil Procedure (above) at 24/8/2; 26/4/6.

18.I also do not consider that discovery is necessary for the fair disposal of the case.  Apart from Li, who shall no doubt testify, there is already the police officer’s investigation report.  Hung and her witnesses will have to deal with it at the trial as they have already prepared to do so by way of their statements.  It is up to the parties to consider whether to require or, if necessary, subpoena that police officer to testify.  By assessing such evidence, the trial judge will be in a position to determine whether Hung and To in fact know each other.  That however still goes to the general credibility rather than the specific issues mentioned above.

19.Miss Fong suggested that legal costs and much inconvenience would be caused to her clients if these documents need to be obtained through the BVI agent.  I cannot take much of that in account because such concern or inconvenience has not actually been raised in Hung’s affirmation.

20.Lastly, my discussion with counsel during the hearing also touched upon the possibility of To’s name and particulars such as his address in the registers which may help locating him.  This really cannot be a relevant consideration for the purpose of this application or the claim between Li and Hung and Richman Properties.  Further, Li has somehow managed to satisfy the court that there is in fact a person by the name of To and that he is in Hong Kong so that substituted service on To has already been ordered by the court.

21.My conclusion is that Li is not entitled to the order for the specific discovery as requested.  I am also satisfied that discretion should in any event exercised against making such order.  I therefore dismiss the summons with costs to Hung and Richman Properties in any event, to be taxed if not agreed.  Li’s own costs be subject to legal aid taxation.

Mr Allen S K Lam of Messrs Liu Chan & Lam for the Applicant on the instruction of the Director of Legal Aid

The 1^st Respondent, absent

Miss Fong Wing Kam, Amy of Messrs Keith Lam Lau & Chan for the 2^nd and the 3^rd Respondents