IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
EMPLOYEES' COMPENSATION CASE NO. 374 OF 2003
IN THE MATTER OF AN APPLICATION BETWEEN
Coram: Deputy District Judge J Ko in Court
Dates of Hearing: 10 and 12 October 2005
Date of Delivery of Decision: 12 October 2005
D E C I S I O N
1. This is my decision concerning the application to set aside the writ of Subpoena duces tecum issued against Miss Leung.
2. This case concerns with the applicant’s application for compensation under the Employees’ Compensation Ordinance (hereinafter called “the Ordinance”) against the 1st respondent as his employer and the 2nd respondent as the principal contractor. The trial was scheduled to start on 10 October.
3. On 26 September, the 2nd respondent issued a writ of Subpoena duces tecum (hereinafter called “the Subpoena”) against Miss Carol Leung Pui-yee (hereinafter called “Miss Leung”) of Ming An Insurance Company (Hong Kong) Limited (hereinafter called “Ming An”) requiring her to attend the trial and produce the following documents:
declarations and statements between Hip Shing Contractors Limited (formerly known as Geotechnical Engineering Services Limited) and The Ming An Insurance Company (Hong Kong) Limited in relation to the applicant;
the Labour Department and The Ming An Insurance Company (Hong Kong) Limited in relation to the applicant; and
declarations and statements between SP Engineering Services
(Hong Kong) Limited (formerly known as Jaytey Engineering
Limited) and The Ming An Insurance Company (Hong Kong Limited)
in relation to the applicant,
other documents related to the aforesaid applicant.”
4. Ming An is the insurer under two separate employees’ compensation insurance policies taken out respectively by Geotechnical Engineering Services Limited, which is now known as Hip Shing Contractors Limited (hereinafter called “Geotec”) and Jaytey Engineering Limited which is now known as SP Engineering (Hong Kong) Limited (hereinafter called “Jaytey”).
5. By a summons dated 8 October, Miss Leung applied to set aside the Subpoena on the ground that the issue of the Subpoena was oppressive and vexatious and an abuse of the process of the court.
6. The application is resisted by the 2nd respondent. The applicant and the 1st respondent take a neutral stance insofar as the application is concerned.
7. Given the fact that the trial is due to start before me irrespective of my ruling on the present application, the less I say, the better.
Argument in support of the application
8. Mr Lam, counsel for Miss Leung, mounts an attack on the Subpoena along the two hurdles identified by Mayo J in Brisilver Investment Limited v Wong Fat Tso, CACV 251/1999, as follows:
(1) that it must be demonstrated that the exercise is not akin to obtaining discovery from a party who is not a party to the litigation; and
(2) that the documents must be relevant and admissible.
9. In relation to the first hurdle, Mr Lam observes that the documents identified in the Subpoena are described in very vague and general terms. Even assuming that such documents exist, the mere existence of such documents is not sufficient to justify the issuance of the Subpoena. He submits that the 2nd respondent has no idea what specific documents may be involved and, more importantly, what the content of such documents is. The inference to be drawn is that the 2nd respondent is embarking on a speculative exercise against Ming An or Miss Leung who are not a party to these proceedings, hoping that some documents in the insurer’s possession might assist their case. He submits that the 2nd respondent has treated the Subpoena as if it were a specific discovery application under Order 24, Rule 7 against a party.
10. In relation to the second hurdle, Mr Lam submits that the identity of the applicant’s employer does not appear to be a live issue in this case. This is because the applicant is claiming the 1st respondent to be his employer at the time of the accident and which is admitted by the 1st respondent. Irrespective of who the employer was, the 2nd respondent would be liable as the principal contractor under the Ordinance.
11. He further observes that the 2nd respondent had applied to join Geotec and Jaytey as respondents in this case. The application was dismissed by Her Honour Judge Wong on 22 December 2004 (hereinafter called “the Joinder Decision”). Whilst Mr Lam is not suggesting that the Joinder Decision constitutes res judicata against the 2nd respondent, Mr Lam does not stop there. He prays in aid the judgment of Andrew Cheung J in Ng Yat Chi v China Resources (Holdings) Company Limited, HCA 424/2005, and submits that this court should act on its own motion to strike out the averment in paragraph 2(i) of the 2nd respondent’s Answer that the applicant was employed by Geotec. He submits that it is an abuse of process for the 2nd respondent to continue to allege at the trial that either Geotec or Jaytey was the employer when the 2nd respondent has neither appealed against the Joinder Decision nor made a second application to join Geotec and Jaytey in light of the new evidence that the 2nd respondent says has emerged since the Joinder Decision.
Argument in opposition to the application
12. On the part of Mr Krishnan, the solicitor representing the 2nd respondent, he submits that the 2nd respondent’s case in these proceedings is that:
2nd respondent disputes the fact of the accident, and
importantly, the 2nd respondent contends that the applicant was not
employed by the 1st respondent at the time of the accident but was
an employee of either Geotec or Jaytey.
13. According to Mr Krishnan, the significance of the 2nd respondent’s contention regarding the identity of the applicant’s employer is that the 1st respondent was not insured at the time of the accident but both Geotec and Jaytey were. If the 2nd respondent’s contention is correct, Geotec or Jaytey may be deemed to be the applicant’s employer by reason of the definition of “employer” under section 3 of the Ordinance, and the 2nd respondent may then get meaningful indemnity under section 24 of the Ordinance from Geotec or Jaytey through their employees’ compensation insurance with Ming An.
14. He submits that the issue of the identity of the applicant’s employer has always been a live issue in this case. The 2nd respondent could not get meaningful discovery on this issue from the applicant. The 2nd respondent obtained orders for specific discovery against the 1st respondent, Geotec and Jaytey respectively on 28 May. On 1 August, the 2nd respondent received documents from Geotec in pursuance of the orders for specific discovery which include a letter dated 13 July 2003 from Toplis & Harding (Hong Kong) Limited, the loss adjustors appointed by Ming An (hereinafter called “The Toplis Letter”). From the Toplis Letter, the 2nd respondent realises the existence of the documents identified in the Subpoena and hence the Subpoena.
15. Mr Krishnan says that the Subpoena is not oppressive because the documents have been specified with sufficient particularity and the documents involved would only be two slim files at the maximum. He submits that the request is proportionate to the claim.
16. Concerning the Joinder Decision, Mr Krishnan says that the decision was based on affidavit evidence before the judge at the time and has since been overtaken by subsequent discovery. The 2nd respondent did not bother to appeal against the decision because the amount involved is small.
17. In any event, Mr Krishnan submits that the issue of who was the actual or deemed employer of the applicant can still be pursued as a live issue at the trial, notwithstanding the Joinder Decision. He accepts that the 2nd respondent could have applied for specific discovery against Ming An or Miss Leung before trial, just like the 2nd respondent’s applications concerning Geotec and Jaytey. However, he says that there is no obligation on the 2nd respondent to do so and he admits that the 2nd respondent has made a conscious decision to request for the documents by way of the Subpoena.
The relevant legal principles
18. Mr Lam submits that the general principles applicable to the issue of Subpoena duces tecum can be found in the judgment of Nazareth VP of the Court of Appeal in To Kan Chi v Pui Man Yu  3 HKC 369 at 377G to 379G, which was quoted from the judgment of Yam J in the lower court and supplemented with comments of the Court of Appeal.
19. In the subsequent case of Brisilver Investment Limited v Wong Fat Tso, CACV 251/1999, the Court of Appeal reaffirmed the...