Cheung Kin Chi v Gammon Construction Ltd.

CourtDistrict Court (Hong Kong)
Judgement NumberDCEC52/2002
Subject MatterEmployee"s Compensation Case
DCEC000052/2002 Cheung Kin Chi v. Gammon Construction Ltd.

DCEC000052/2002

DCEC52/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 52 OF 2002

_________________

BETWEEN
Cheung Kin-chi Applicant
AND
Gammon Construction Limited Respondent

_________________

Coram: Deputy Judge Charles TC Wong

Date of Judgment: 1 August 2002

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R U L I N G

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1. This is a case of Employees' Compensation where the applicant suffered a back injury as a result of an accident that occurred on 28 November 2000. Liability is in dispute.

2. The background of this case is the applicant, on the alleged date of accident, did not report the accident but showed up the next day on 29 November 2000 and reported his injury by submitting a sick leave certificate to the respondent on 30 November 2000.

3. In early December 2000, the respondent's safety officer, Mr Tau Siu-cheung, carried out an investigation in respect of the applicant's injury. Mr Tau, in the course of his investigation, interviewed the applicant's co-workers and had taken brief statements from them. This is evidenced by a letter to the Labour Department. It is also admitted by Mr Tau that these statements had been taken by him. The applicant now applies for specific discovery in respect of these brief statements.

4. It is not disputed that these statements of the co-workers are relevant. The respondent, however, oppose the application on the basis that the witness statements come under the umbrella of "legal professional privilege".

5. In support of the opposition, Mr Tau of the respondent had filed an affirmation stating:

"I conducted interviews with the applicant and his co-workers and brief statements were taken from them. I confirm all documents and information gathered from the interview and investigation were solely and dominantly prepared with a view to obtaining legal advice in respect of the contemplated litigation. At the material time the respondent had a legal department advising on the legal issues arising from the operation of the respondent's business."

The Law

6. The two classes of documents that are protected on the ground of legal professional privilege, as set out in paragraph 24/5/7 of the Hong Kong Civil Procedure 2002, Volume 1 are:

(a) those that are privileged whether or not litigation was contemplated or pending; and

(b) those that are only privileged if litigation was contemplated or pending when they are made or came into existence.

7. In Waugh v British Railway Board [1979] 2 All E.R. 1169, which was followed in Tam Yuk-kwan v Chu Cheuk Tao [1989] 1 HKC 231, the principles for "dominant purpose...

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