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Choi Hei Man Kammie v Metro City Management Ltd

Judgment Cited in Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date02 March 2023
Neutral Citation[2023] HKDC 298
Year2023
Subject MatterMiscellaneous Proceedings
Judgement NumberDCMP4250/2022
CourtDistrict Court (Hong Kong)
DCMP4250/2022 CHOI HEI MAN KAMMIE v. METRO CITY MANAGEMENT LTD

DCMP 4250/2022

[2023] HKDC 298

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 4250 OF 2022

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BETWEEN
CHOI HEI MAN KAMMIE Plaintiff
and
METRO CITY MANAGEMENT LIMITED Defendant

--------------------------------

Before: Deputy District Judge Tony Ko in Chambers
Date of Hearing: 27 January 2023
Date of Decision: 2 March 2023

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DECISION

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I. Introduction

1. By an originating summons issued on 9 November 2022 (the “OS”), the Plaintiff applies for pre-action discovery against the Defendant under section 47A of the District Court Ordinance, Cap 336 (“DCO”) and Order 24, rules 7A and 8 of the Rules of the District Court, Cap 336H (“RDC”).

2. Mr Leung of Counsel appeared for the Plaintiff and Ms Fan appeared for the Defendant before me at the hearing on 27 January 2023. At the conclusion of the hearing, I reserved decision to be handed down. This is my Decision.

II. The Application

3. The present application relates to a potential personal injuries action arising from a trip and fall accident (the “Accident”) which occurred at Metro City Phase 2 Parking Lot on B1 Level, 8 Yan King Road, Tseung Kwan O, New Territories, Hong Kong near the main lobby lifts (the “Premises”) on 19 May 2022 at approximately 1:40pm. The Defendant was at the material time the manager of the Premises.

4. In the OS, the Plaintiff asked for the production of all CCTV footage capturing the Accident (the “Footage”). An Affirmation of the Plaintiff (“P’s Aff”) was filed in support of the application. An Affirmation of Kwan Kit Ying, the Defendant’s solicitor, (“D’s Aff”) was filed in opposition to the application. I am also assisted by the parties’ respective submissions.

III. Legal Principles

5. The following provisions in the RDC are relevant:-

O 24, r 7A of RDC:-

(3) A summons under paragraph (1) or (2) shall be supported by an affidavit which must—

(a) in the case of a summons under paragraph (1), state the grounds on which it is alleged that the applicant and the person against whom the order is sought are likely to be parties to subsequent proceedings in the Court;

(b) in any case, specify or describe the documents in respect of which the order is sought and show, if practicable by reference to any pleading served or intended to be served in the proceedings, that the documents are relevant to an issue arising or likely to arise in the proceedings and that the person against whom the order is sought is likely to have or have had them in his possession, custody or power.

(3A) In the case of a summons under paragraph (1), paragraph (3)(b) shall be construed as if for the word “relevant”, there were substituted the words “directly relevant (within the meaning of section 47A of the Ordinance)”.

O 24, r 8 of RDC:-

(2) No order for the disclosure of documents shall be made under section 47A or 47B of the Ordinance, unless the Court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.

6. The relevant requirements for pre-action discovery are well established, as set out in VTB Debt Centre LLC v Top Fuel Corporation Ltd (HCMP 1543/2013, 16 April 2014) and refined in Zhang Shouen v Standard Chartered Bank (Hong Kong) Ltd (HCMP 682/2015, 15 October 2015). The 5 requirements were recently summarised by DHCJ Winnie Tsui in Lu Cheng Te Raymond v Yeh Shing Hang Kevin Arthur (HCMP 2109/2021, 11 February 2022 [2022] HKCFI 503), at §28:-

(1) The applicant appears to be likely to be a party to subsequent proceedings in the court in which a claim is likely to be made. In order to satisfy the requirement that a claim is likely to be made, the applicant must show that a claim “may” or “may well” be made if discovery is granted.

(2) The respondent appears likely to be a party to such proceedings.

(3) The respondent appears likely to have or to have had in his possession, custody or power the document requested.

(4) The requested document is “directly relevant” to an issue arising or likely to arise out of that claim. “Direct relevance” is shown only if:

a. the document would be likely to be relied on in evidence by any party in the proceedings; or

b. the document supports or adversely affects any party’s case.

(5) The applicant must satisfy the court that the order for pre-action discovery is necessary either for disposing fairly of the cause or matter or for saving costs.

7. The first four requirements are jurisdictional conditions which must be satisfied before the Court could exercise its discretion to order discovery. The fifth requirement requires the Court to be satisfied that the discovery sought is necessary either for disposing fairly of the cause or matter or for saving costs.

8. The principles governing the application are largely undisputed. As will be discussed below, the main dispute between the parties is in relation to the fifth requirement.

IV. Parties to Subsequent Proceedings

9. The Plaintiff was injured at the Premises to which the Defendant was the manager. It cannot be seriously disputed that the parties in the present application are likely parties to subsequent proceedings regarding the Accident. The first and the second requirements are clearly satisfied.

V. Possession, Custody and Power

10. For the third requirement, I note that in answer to the Court’s enquiry, Ms Fan for the Defendant was unable to confirm the existence or otherwise of the Footage capturing the Accident. I raised this question as the existence of such footage(s) was not denied in D’s Aff.

11. On the other hand, in P’s Aff, the Plaintiff was adamant that she noticed a camera at the vicinity of the Accident which could capture the Accident. She further said that she was reassured by several employees of the Defendant that such footage(s) existed. This has not been challenged in D’s Aff.

12. At the hearing, Ms Fan clarified that the Defendant does not deny, but could not confirm either, the existence or otherwise of the Footage. She explained that the Defendant accepts that there were CCTV cameras installed in the shopping mall, but these cameras might not necessarily have captured the Accident.

13. I have also considered the letter dated 8 July 2022 sent by Toplis, the loss adjusters appointed by the insurers of the Defendant, to the Plaintiff’s solicitors. It was said in the letter that the Defendant was “Our Principal’s Insured” while 19 May 2022 was the “Date of Loss” for the “Bodily injury of [the Plaintiff]”.

14. At paragraph 3 of the said letter, it was stated that:-

“we regret to inform you that we are unable to release the other information/ documents, i.e. CCTV footage that you have requested regarding the captioned incident. Therefore, all the investigation records and documents are subject to the rule of confidentiality that we are legally bound to oblige.” (Emphasis added)

15. The reason put forward by Toplis as to why the Footage could not be released was one of confidentiality. While it is not necessary for me to express a view on the alleged reliance on the “rule of confidentiality”, the important point to note is that Toplis did not say that the Footage did not exist, which was what one would have expected Toplis to say had that been the case.

16. In the circumstances, I find that the Defendant is likely to have the Footage in its possession, custody or power. The third requirement is therefore satisfied.

VI. Direct Relevance of the Footage

17. At the hearing, Ms Fan stated that the Defendant would not seriously dispute that the fourth requirement was satisfied. Despite the lack of any draft pleadings, the issues likely to arise in the action are straight forward, given that this is a trip and fall case. They include (i) how did the Accident happen; (ii) whether the Accident was caused by any fault on the part of the Defendant; and (iii) if the Accident was caused by the fault of the Defendant, whether the Plaintiff was contributorily negligent.

18. The Plaintiff asserts that she tripped and fell as a result of the uneven surface and/or the potholes on the ground. As the Footage captures the Accident (and the surroundings), it is likely to be relied upon by either party in the potential personal injury claim as evidence to assist the Court in understanding how the Accident occurred and the cause(s) of the injuries.

19. I find the Footage to be directly relevant to issues likely to arise out of the potential personal injury action, and that the fourth requirement is satisfied.

VII. Necessary for Saving Costs

20. Having satisfied the above conditions, this Court has jurisdiction to grant an order of pre-action discovery. In exercising my discretion, I shall consider whether the discovery sought is necessary under the fifth requirement.

21. At the hearing, I invited the parties to address the Court on, inter alia:-

a. why was there no...

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