Hong Kong Lawyer

JANUARY 2018

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CASES IN BRIEF 案 例 撮 要 CIVIL PROCEDURE Tsang Tak Wai v Building Authority [2016] CHKEC 1523 Court of Appeal Civil Appeal No 104 of 2016 Chu and Poon JJA 9 November 2016 Civil procedure — discovery — application for discovery on appeal — evidence should be adduced at trial, not appeal —whether documents sufficiently specified, relevant and necessary — Rules of the High Court (Cap. 4A, Sub.Leg.) O. 24 rr. 7, 7A, 8 Civil evidence — appeal — adducing further evidence — whether conditions in Ladd v Marshall satisfied X unsuccessfully applied for leave to apply for judicial review (the Application) of the decision of the Building Authority (the BA) (the Decision) refusing a company's application to appoint him to act on its behalf under the Buildings Ordinance (Cap. 123). On appeal to the Court of Appeal, X took out a summons applying for, inter alia, discovery of: (1) all documents relevant to the case to be used as evidence in the appeal; (3) guidance notes (Guidelines) for interviews of the Contractors Registration Committee (CRC); (4) complete record of X's three interviews; (5) CRC's secretary's record of the three interviews; and inspection of (6) all documents relating to the case held by Rs to see if they had all been submitted to the Court. Held, dismissing the Application, that: • The discovery application should not be granted. First, the gathering and production of evidence should take place at the first instance hearing, and not on appeal. In applications for leave to apply for judicial review, in particular, the applicants must show that the intended judicial review applications were reasonably arguable with realistic prospects of success, and the Court of First Instance determined the applications on the basis of the evidence adduced by the applicants. In hearing appeals from the Court of First Instance, the Court of Appeal was exercising the appellate jurisdiction under s. 13(2) of the High Court Ordinance (Cap. 4), and should therefore not have regard to evidence that was only produced after the trial judges' determinations (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at [49]–[53], Cheuk Shu Yin v Lo Yeuk Kan [2017] 4 HKLRD 837 at [12] applied). (See paras. 7, 9–10.) • Second, X had not shown that the documents in (1), (4) and (6) were relevant to an issue in the intended proceedings or that discovery was necessary either for disposing fairly of the cause or saving costs as required under O. 24 rr. 7A and 8 of the Rules of the High Court (Cap. 4A, Sub. Leg.) (RHC). The "documents" in (1) and (6) were unspecified and vague and their scope was too extensive. As for (4), the records of the first two interviews were not directly relevant to the Decision, which was the focus of the Application. The record of the third interview had been admitted as evidence at trial. X had not shown how the CRC members' names and signatures, which had been deleted, were directly relevant to the Application. (See paras. 11–12, 16–17.) • The documents in (3) and (4) did not meet the conditions in Ladd v Marshall. As for (3), the Guidelines were not relevant to any grounds in the Application. Rs had supplied X with documents concerning the scope of interview assessments and if, as he now argued, the Guidelines were "crucial", he should have applied to the Judge for their disclosure as evidence in the Application. The reason proffered for seeking discovery amounted to a new argument raised only on appeal and this was impermissible (Ladd v Marshall [1954] 1 WLR 1489 applied). (See paras. 8, 14–15.) • The documents in (5) did not satisfy O. 24 rr. 7, 7A and 8 of the RHC, since the Secretary, who was not required to take or preserve such notes, was no longer in possession of any interview notes; and they were also not substantially related to the Application or appeal. (See paras. 11, 18–20.) Application This was an application for discovery of documents by the first and second putative respondents on appeal by the applicant against the judgment of Andrew Chung dismissing his application for leave to apply for judicial review of a decision of the first respondent (see [2016] CHKEC 464). The facts are set out in the judgment. 58 www.hk-lawyer.org •  January 2018

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