Read the full judgment text of LACO 1/1954 on BabelCite. This LACO judgment was delivered on 18 June 1998 before Nazareth V-P, Liu JA, V. Bokhary J.
Civil procedure – subpoena duces tecum – non-party witnesses – discovery – religious trust – Tsing Wan Kun – properties of the To Clan – sub-contract not applicable – Secretary for Justice in dual capacities as parens patriae and representative of Government Departments – plaintiffs conceded Government Departments not sued – Government Departments ceased to be parties – five writs of subpoena duces tecum issued to five non-party Government Departments requiring production of entire contents of approximately 32 original files identified only by file references – whether writs amount to impermissible general discovery from non-parties – whether documents sufficiently identified by particular description – whether trial judge entitled to infer relevance based on 'past experience' with four other files – whether Secretary for Justice's dual role justified distinction from third-party subpoena – whether interlocutory appeal should be permitted – held: appeal allowed; writs set aside – general principle that non-party witness cannot be compelled to give discovery of documents – subpoena duces tecum limited to documents that are evidence in the case, i.e. both material and admissible – R v Clowes distinguished as a criminal case applying English statutory test not applicable in Hong Kong – Matthew & Malek on Discovery requirement of particular description – attempt to obtain entire files where contents not known is a discovery exercise, not the production of identified evidence – trial judge's inferential finding of relevance based on 'past experience' could not stand as he had no sight of the 32 files and no evidence of their contents – dual capacities of Secretary for Justice must be kept distinct – fact that same Hong Kong Government is involved does not convert non-party subpoena into party discovery – privilege and public interest immunity militated against sustaining writs – interlocutory appeals to be discouraged in matters inter partes but non-parties being vexed by massive production orders must be permitted to appeal – order nisi for 75% of appellant's costs reflecting that inconsistent and confusing stance originally adopted contributed to bringing the appeal – 75% of costs of the appeal awarded to the Secretary for Justice
Legal issues: Whether five writs of subpoena duces tecum directed to non-party Government Departments amount to impermissible general discovery · Whether the trial judge's inferential finding of relevance could stand on the basis of 'past experience' with prior discovery · Whether the Secretary for Justice's dual capacities (parens patriae and representative of Government Departments) justified the issuance of the subpoenas · Whether interlocutory appeals during trial should be permitted in the circumstances
Outcome: Appeal allowed. The trial judge's order refusing to set aside the five writs of subpoena duces tecum is set aside, and the five writs of subpoena duces tecum are set aside.