F v. Secretary for Justice for and on behalf of Commissioner

DCCJ2555/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2555 OF 2010

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DECISION

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INTRODUCTION

1.At the pre-trial review hearing (“the PTR”) of this case, the defendant raised the issue of whether the plaintiff’s alleged admissions contained in the admitted facts in the criminal case of KCCC 4201/2012 for assaulting a sex worker (“the Admitted Facts”) should be admissible in this action.

2.The defendant's main argument is that the Admitted Facts are highly relevant to a host of composite issues of liability and quantum in this action.  In particular, the defendant claims that since the Admitted Facts were made in open court and the defendant had been bound over as a result of those admissions, it will be potentially misleading to both the medical experts and the court if those Admitted Facts are not placed before the court during the trial.

3.The defendant in its letter dated 12 August 2013 pointed out in particular that the plaintiff had on 12 July 2012 and 26 September 2012 respectively made an affidavit and a statement of truth to verify certain matters.  The defendant claims that if the court and the experts are kept away from the Admitted Facts, the court and the experts may be misled.

4.The defendant further relies on the fact that in a consultation summary of the plaintiff dated 31 August 2012, the plaintiff claimed that “he preferred to stay along at home and became relatively withdrawn since then”.  And in the consultation summary dated 27 September 2012, the plaintiff was recorded to have said to the doctors that he “tried to avoid contact with police and would have intense fear whenever he bumps into policeman on the street by chance."

5.The defendant claims that the plaintiff was in breach of his duty to disclose material facts in this case.

DISCUSSION

6.It is trite that in a civil case, all relevant documents “relating to any matter in question” between the parties in the action should be discovered: see Order 24 rule 2 of the Rules of the District Court.  It is also a well established principle in law that the court would not order discovery which was directed solely to cross-examination as to credit or to evidence of the existence of similar facts where those similar facts had no material bearing on the issues to be decided in the action but were merely prejudicial as showing instances of similar conduct in other situations: see Thorpe v Chief Constable of Greater Manchester Police [1989] 1 WLR 665 and also para 24/2/10 of the Hong Kong Civil Procedure 2015 at pp556-557.

7.Dillon LJ at p668 in Thorpe stated that the words “relating to any matter in question between the parties” refer not to the subject matter of an action but to the questions in the action, and that any document must be disclosed which it is reasonable to suppose that contains information which may enable the party applying for discovery either to advance his own case or to damage that of his adversary or which may fairly lead him to a train of inquiry which may have either of these two consequences.

8.As pointed out by Dillon LJ, one of the limitations on the general rule is that the court should not order discovery, or interrogatories which are a form of discovery, on matters which would go solely to cross-examination as to credit.  Another limitation is that the evidence of what happened in one transaction may be relevant to the question of what happened in another, where that is not so to order discovery in respect of what may turn out to be similar facts transactions would be likely to be oppressive and so the order should not be made.

9.With respect to Mr Chan, senior government counsel who represents the defendant at the PTR, I fail to see why the Admitted Facts in the criminal case which happened in 2012 would have any bearing in the alleged assault and false imprisonment allegations made in relation to the incident which happened in 2007 for the following reasons. 

10.First, the Admitted Facts are for the purpose of a bind-over order and not as a result of admission of guilt after pleading guilty to the charge.  It is not as if the plaintiff had admitted to a charge of assault to the sex worker and therefore somehow made the assault become relevant.  In fact, it is far from clear what the plaintiff's dispute with the sex worker was about.  Under caution, the plaintiff denied the offence of the assault and alleged that he was only looking for massage service but was assaulted when he tried to leave the premises.  Thus to allow the Admitted Facts in the present trial will have the detrimental effect of opening a new set of factual dispute which has no direct bearing to the issues which the court has to decide in this case.

11.Second, as said, the plaintiff in civil proceedings is only under a duty to discover documents relevant to the issues in the case.  He is not under a duty to discover documents which may not have direct relevance to the issues in dispute.  If the defendant considers that a certain document is relevant to the issues in dispute that had not been discovered by the other party, he is entitled to take out a summons for specific discovery.  What is peculiar in this case is that it was the defendant who had somehow “discovered” the Admitted Facts and wrote to the plaintiff's solicitors to request them to make discovery of the same in this present case: see letter from Department of Justice to the plaintiff’s solicitors dated 12 August 2013.  In my view, if the defendant felt that the plaintiff had failed to make full discovery of documents, he should have taken out a summons for specific discovery and let the court to decide whether such a document is relevant or not.  It is not for them to tell the plaintiff and his lawyers how to conduct their own case.

12.Third, the alleged incident contained in the Admitted Facts happened in August 2012.  He was charged by the police on 28 September 2012 and was brought before the magistrate on 9 October 2012.  It is not clear when the bind-over order was made and the Admitted Facts were agreed by the plaintiff and the prosecution.  However, the earliest date would be sometime in early October 2012.  What is clear is that the alleged representations under the affidavit and false representations under the statement of truth were all made before the Admitted Facts were agreed sometime in October 2012.  In my opinion, it cannot therefore be said that when the plaintiff made those alleged representations, he was hiding the matters contained in the Admitted Facts from anybody as they had not been agreed yet.

13.Fourth, I consider that the prejudicial effect of allowing the Admitted Facts to be included as part of the documents in this case would be faroutweighing the probative effect that it has.  As mentioned, if the document is only used for the purpose of cross-examination as to credit or to evidence of the existence of similar facts, then it is not allowed under the rules.  I do not see how the Admitted Facts would be relevant save for those purposes.  The fact that the plaintiff had not been convicted of any assault charges and there exists room for arguments as to what the dispute he had with the sex worker was about would in my opinion make the inclusion of the Admitted Facts highly prejudicial.

14.Fifth and lastly, Mr Chan for the defendant in his oral submissions added that the Admitted Facts would not only be relevant to the issue of liability but to the issue of quantum also as the experts had commented on them.  The psychiatric experts had already stated that the Admitted Facts would not affect their view on M’s case and the only expert who said they would be relevant is Dr Yu, expert for the defendant.  With respect to Dr Yu, those matters stated by him in the supplemental joint expert report in F’s case are matters of credibility for the court to decide and not for him to judge.  Even if I were to allow the inclusion of the Admitted Facts, I would not have allowed the expert to usurp the role of the court by allowing the supplemental report to go in as part of the evidence.    

CONCLUSION

15.For the above reasons, having taken into account of all the circumstances of the case, I do not consider it would be fair and just to allow the Admitted Facts to be included as part of the documents in this case.  I therefore would reject the defendant's application.  I would also rule that the supplemental joint psychiatric reports of the experts commenting on this issue are inadmissible and should be expunged from the trial bundles.  I also would order that the costs in relation to the application should be awarded to the plaintiff in any event with certificate for counsel.  The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

Mr Earl Deng, instructed by Vidler & Co., for the plaintiff

Mr Mark Chan, Senior Government Counsel of Department of Justice, for the defendant