LEUNG YIU TING v. MTR CORPORATION LTD

HCMP 1441/2019

[2020] HKCFI 460

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1441 OF 2019

________________________

	IN THE MATTER of Pre-Action Discovery
	and
	IN THE MATTER OF Section 42 of High Court Ordinance (Cap. 4), Order 24 Rule 7A of the Rules of High Court (Cap. 4A) & Inherent Jurisdiction

BETWEEN
	LEUNG YIU TING	Plaintiff
	and
	MTR CORPORATION LIMITED	Defendant

________________________

Before:

Hon Chow J in Chambers

Date of Decision:

18 March 2020

____________________

DECISION

____________________

INTRODUCTION

1.  This is an application by the Plaintiff for pre-action disclosure by MTR Corporation Limited (“MTRC”) of all close-circuit television (“CCTV”) footages in:

(1)  Prince Edward Station from 10:40 pm on 31 August 2019 to 1:30 am on 1 September 2019; and

(2)  Lai Chi Kok Station from 1:25 am to 2:00 am on 1 September 2019[1].

2.  The Plaintiff’s application for pre-action disclosure is opposed by MTRC.

3.  The application was originally fixed to be heard on 9 March 2020.  The hearing was adjourned due to public health considerations which it is not necessary to further explain here.  Upon the court’s invitation, the parties agreed that the application could be determined by way of written submissions.  For this purpose:

(1)  the Plaintiff filed Skeleton Arguments on 2 March 2020;

(2)  MTRC filed Skeleton Submissions on 5 March 2020; and

(3)  the Plaintiff filed a Note of Reply on 9 March 2020.

4.  This is the court’s determination of the Plaintiff’s application.

BASIC FACTS

5.  The following brief summary of the facts is taken from the Plaintiff’s affirmations filed in this application.  Since the Police is not a party to this application, and the court has not received any evidence from the Police, the facts stated below should not be regarded as having been proved in any subsequent proceedings which may be brought by the Plaintiff against the Commissioner of Police or individual police officers.

6.  The Plaintiff is a third year university student of the Education University of Hong Kong.  In the evening of 31 August 2019, sometime after 9:00 pm, the Plaintiff boarded a train (subsequently identified to be “T28”) on the Tsuen Wan Line in the direction of Central Station, intending to meet up with a friend at Prince Edward Station.  When the train arrived at Platform 4 of Prince Edward Station, he came to realise that all the trains in the station had stopped moving, and he heard an announcement that there was an emergency, the station was closing because of a serious incident, and everyone should exit immediately.

7.  The Plaintiff left the train and used an escalator (subsequently identified to be “Escalator E1”) to leave Platform 4.  The Plaintiff did not notice the time then, but estimated that it was sometime between 9:45 pm and 10:00 pm, although the evidence suggests that it was more likely to be around 10:50 pm.  For the present purpose, nothing much turns on the exact time when the Plaintiff took the escalator.  When he was halfway up the escalator, a group of police officers in riot gear appeared at the top, while another group of police officers from the Special Tactical Squad appeared at the bottom, of the escalator, trapping the people on the escalator in between.  Apparently, the escalator had also stopped moving by that time.  The Plaintiff saw “police officers running amok after passengers, heavily hitting them with police batons, spraying them with pepper spray and subduing them on the ground inside the Station.”  The scenes were, according to the Plaintiff, “harrowing and distressing”.

8.  The police officers told the people on the escalator to crouch down, with their hands above their heads and their faces to one side of the escalator.  A male police officer wearing riot gear beat the Plaintiff’s left arm and hand a number of times using a police baton, which caused him great pain.  The areas which got hit later become red and swollen.  While the people on the escalator were crouching down facing the wall, some police officers proceeded down the escalator walking on their backs and the handrails.  The Plaintiff’s back was stepped on by a number of police officers.  Later, the police officers used plastic tie strips to cuff the people, including the Plaintiff, without informing them of the reason for their arrest.  The Plaintiff’s hands were tied very tightly by plastic tie strips, and his arms felt very uncomfortable.  The males were then taken back to the platform, and they were asked to crouch down with their hands on the back.  One by one, they were taken to another spot for a body search.

9.  Later, a female police inspector declared that it was 00:17 am on 1 September 2019, and said that everyone including the Plaintiff was under arrest for unlawful assembly.  The Plaintiff recalled that there were around 20-30 arrested persons in Prince Edward Station at that time.  He was feeling dizzy and painful in his arms and shoulders.  Due to the chaotic circumstances inside Prince Edward Station, the Plaintiff could not identify all the locations where, or recall the exact times when, he was assaulted.  Later still, the Plaintiff along with other arrested persons were brought onto a train, and taken to Lai Chi Kok Station.  He sat on a seat inside a train compartment, with his hands still cuffed behind his back.  He felt numb in his arms and shoulders due to a lack of blood circulation.  His shoulders were in pain as they were kept fixed in the same position for a long time, while his arms were still painful as a result of the earlier assault by a police officer.

10.  Upon arrival at Lai Chi Kok Station, he was driven to Kwai Chung Police Station.  Despite requests, the Plaintiff was not allowed to go to hospital until around 4:00 pm on 1 September 2019.  He was discharged from hospital (still under police custody) at around 9:00 pm on 2 September 2019.  The Plaintiff was eventually released unconditionally by the Police at around 11:00 pm on 2 September 2019.

11.  The Plaintiff now intends to make a civil claim for damages against the Police for assault and unlawful arrest.  In his First Affirmation dated on 7 September 2019, at §3, the Plaintiff said that he intended to bring a claim against the Commissioner of Police for personal injuries, loss and damage sustained by him during the aforesaid period in Prince Edward Station and when he was in police custody up to about 11:00 pm on 2 September 2019.  In his Third Affirmation dated 24 December 2019, at §9(1), the Plaintiff stated that he would reserve his right to claim against the individual police officers responsible for his personal injuries, loss and damage, because he was concerned that if the police officers concerned were not named as defendants in the civil action, ultimately any damages and costs that he might recover would come from public funds.

12.  In Mr Anthony Cheung’s Skeleton Arguments for the Plaintiff dated 2 March 2020, at §18, he identifies the Plaintiff’s potential causes of action against the Commissioner of Police and the police officers concerned as including assault, wrongful arrest and false imprisonment.  The present application is made in aid of the Plaintiff’s proposed civil action.

DISCUSSION

13.  The applicable principles for what is commonly referred to as Norwich Pharmacal relief were set out by Ma J (as he then was) in A v B [2002] 3 HKLRD 111, at §§10-13, as follows:

“[10] Where innocent parties are caught up or have become involved in the tortious or wrongful activities of others, thus facilitating the perpetration (or continuation) of such activities, justice may require (and therefore the court may order) that such innocent persons come under a duty to assist the victim of the tort or wrongful activities, by the provision of full information even though such innocent persons cannot be shown to incur any personal liability at that stage. The foundation of the court’s jurisdiction here is its equitable jurisdiction...

[11] The jurisdiction is a wide one. It is not restricted, as was at one time thought, to the disclosure of the names of wrongdoers only...

[12] Though founded ultimately on notions of justice, nevertheless, it is important to emphasise the extraordinary nature of this relief because it is not a usual order and is not one that a court would lightly grant in the absence of powerful factors. I emphasise the following characteristics of this type of order:

(1) It is made against an innocent party whose only involvement is to become mixed up in the tortious or wrongful activities of others. There is, at that stage, no evidence of any wrongdoing on the part of the innocent party.

(2) Instead, whatever wrongdoing there is, exists only on the part of a person or persons against whom no relief may be sought at that stage and indeed against whom there is probably insufficient evidence to found an action. In other words, this person or these persons will most probably not be before the court and would not be able to answer what are often very serious allegations made against them.

(3) Usually, there will, moreover, exist a legal relationship between the innocent person against whom a discovery order is sought and the alleged wrongdoer and this relationship may involve strict duties to be observed on the innocent party’s part...

(4) The court, accordingly, in applications for Norwich Pharmacal relief must, in its discretion, balance the competing interests of the victim of the alleged wrongdoing and an innocent party caught up in the wrongdoing.

[13] Given these characteristics as I have outlined, such orders are therefore not lightly made as I have said. In my view, it is essential for the court to bear the following in mind before a Norwich Pharmacal order is made:

(1) There must be cogent and compelling evidence to demonstrate that serious tortious or wrongful activities have taken place... All the more so when the alleged wrongdoer is not and will not likely be before the court.

(2) It must also be clearly demonstrated that the order will or will very likely reap substantial and worthwhile benefits for the plaintiff...

(3) The discovery sought must not be unduly wide. There is no entitlement to general discovery ... This is not to say that discovery orders cannot be wide; what is important is that the discovery, whether wide or narrow, is necessary.”

14.  When considering the width and application of the Norwich Pharmacal jurisdiction, it is, I consider, important to recognise and bear in mind that the remedy is a flexible one the use of which should not be stultified by rigid concepts:

(1)  In Ashworth Hospital Authority v MGN Ltd [2002] 1 WLR 2033, at §57, Lord Woolf CJ stated the following -

“The Norwich Pharmacal jurisdiction is an exceptional one and one which is only exercised by the courts when they are satisfied that it is necessary that it should be exercised. New situations are inevitably going to arise where it will be appropriate for the jurisdiction to be exercised where it has not been exercised previously. The limits which applied to its use in its infancy should not be allowed to stultify its use now that it has become a valuable and mature remedy. That new circumstances for its appropriate use will continue to arise is illustrated by the decision of Sir Richard Scott V-C in P v T Ltd [1997] 1 WLR 1309 (where relief was granted because it was necessary in the interests of justice albeit that the claimant was not able to identify without discovery what would be the appropriate cause of action).”

(2)  In Rugby Football Union v Consolidated Information Services Ltd (formerly Viagogo Ltd) [2012] 1 WLR 3333, at §§15-17, Lord Kerr of Tonaghmore JSC stated the following (omitting citations of authorities):

“[15] Later cases have emphasised the need for flexibility and discretion in considering whether the remedy should be granted ...

[16] The need to order disclosure will be found to exist only if it is a ‘necessary and proportionate response in all the circumstances’. The test of necessity does not require the remedy to be one of last resort.

[17] The essential purpose of the remedy is to do justice. This involves the exercise of discretion by a careful and fair weighing of all relevant factors. Various factors have been identified in the authorities as relevant. These include: (i) the strength of the possible cause of action contemplated by the applicant for the order; (ii) the strong public interest in allowing an applicant to vindicate his legal rights; (iii) whether the making of the order will deter similar wrongdoing in the future; (iv) whether the information could be obtained from another source; (v) whether the respondent to the application knew or ought to have known that he was facilitating arguable wrongdoing; (vi) whether the order might reveal the names of innocent persons as well as wrongdoers, and if so whether such innocent persons will suffer any harm as a result; (vii) the degree of confidentiality of the information sought; (viii) the privacy rights under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of the individuals whose identity is to be disclosed; (ix) the rights and freedoms under the EU data protection regime of the individuals whose identity is to be disclosed; (x) the public interest in maintaining the confidentiality of journalistic sources, as recognised in section 10 of the Contempt of Court Act 1981 and article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.”

(3)  In R (Omar) v Secretary of State for Foreign and Commonwealth Affairs [2014] QB 112, at §39, Maurice Kay LJ referred to the aforesaid judgment of Lord Kerr, in particular, the statements about “the need for flexibility and discretion in considering whether the remedy should be granted” and that “[t]he essential purpose of the remedy is to do justice”, and said that his language was “inconsistent with an intention to impose a more demanding test”.

(4)  In Various Claimants v News Group Newspapers Ltd (No 2) [2014] Ch 400, at §53(a), Mann J referred to the “recognition of the need for flexibility” in the exercise of the Norwich Pharmacal jurisdiction.  See also Mitsui v Nexen Petroleum [2005] 3 All ER 511, at §20, where Lightman J referred to Norwich Pharmacal relief as a “flexible remedy” capable of adaption to new circumstances.

15.  In the present case, there is no dispute that, if the Plaintiff’s allegations against the Police are ultimately proved and accepted by the court in his intended civil action, serious tortious or wrongful activities have taken place.  While I bear in mind that the Plaintiff’s allegations are one-sided at this stage (and thus the caveat mentioned in §5 above), I am prepared to proceed on the basis that there is, presently before the court, cogent and compelling evidence of such tortious or wrongful activities.  The contrary is not argued in MTRC’s Skeleton Submissions.  There is also no dispute that MTRC has in its possession the CCTV footages sought by the Plaintiff.  I am satisfied that the CCTV footages sought by the Plaintiff will likely “reap substantial and worthwhile benefits” for the Plaintiff, in that they constitute a direct source of evidence as to what happened inside Prince Edward Station at the material time of the alleged assault, unlawful arrest and false imprisonment of the Plaintiff, and may also enable the Plaintiff to identify the individual police officers concerned.

16.  On behalf of MTRC, Mr Benjamin Yu, SC has raised four particular objections to the Plaintiff’s application:

(1)  The Plaintiff has not satisfied the threshold requirement in showing that MTRC was mixed up in the alleged wrongdoings so as to facilitate the same.  Instead, MTRC’s position as regards the alleged wrongdoings is no different from that of a mere witness.

(2)  As a matter of the court’s exercise of discretion, a Norwich Pharmacal order should only be made if the innocent third parties were the only practicable source of information.  The basis of the jurisdiction against them is that, unless and until they disclosed what they knew, there could be no litigation in which they could give evidence.  In the circumstances of this case, the Plaintiff is fully able to mount a claim against the intended defendant (ie the Commissioner of Police). He would be able to seek, in that action, discovery of the CCTV footages.  It is neither necessary nor proportionate to require MTRC, an innocent party against whom the Plaintiff is making no claim, to give pre-action disclosure.

(3)  There is no footage which records the Plaintiff on the escalator where the alleged assault took place.

(4)  The proposed discovery order is too wide.

17.  In respect of the first objection, it should be noted that while, as a matter of principle, a Norwich Pharmacal order should not be made against a “mere witness”, there is no absolute rule that such order should not be made against someone who was not “mixed up” or “involved” in, or did not “facilitate”, the alleged wrongdoing.  This point is clearly explained in the judgment of Mann J in Various Claimants, supra, at §§52-54:

“[52] If a participation or facilitation test were the sole test, incapable of expansion, Miss Rose would be correct. However, I do not think that it is the sole test. It is true that the traditional formulation of the test is in such terms, but that is because those are the usual circumstances in which someone becomes something beyond a mere witness. On the facts of the cases where orders were made, the respondent was usually in that position. In my view the answer to the question lies in recognising that what the cases are doing is contrasting two things - the mere witness on the one hand, and a person who is not a mere witness on the other. On the cases the latter class is generally described in terms of participation/facilitation, as though that were the opposite of being a mere witness. But the real analysis lies in appreciating that the courts are holding not that those factors are indeed the other side of a dichotomy, but that those factors prevent the respondent from being a mere witness. Once that is recognised then it becomes relevant to consider whether there are other facts, short of participation/facilitation, which could prevent a person from being a mere witness. That question has not arisen in the cases in terms, but since the real question is the scope of the mere witness rule it is relevant to consider that particular question. It has been made to arise in the present case because of its unusual facts.

[54] I therefore turn to consider the relevant question which is not whether the MPS have participated in, or facilitated, or been involved in the actual wrongdoing in this case. It is whether the MPS is a mere witness (or metaphorical bystander) or whether its engagement with the wrong is such as to make it more than a mere witness and therefore susceptible to the court’s jurisdiction to order Norwich Pharmacal disclosure.”

18.  In the present case, MTRC was more than a “mere witness” in relation to the alleged wrongdoings complained of by the Plaintiff, having regard to the following circumstances:

(1)  The alleged tortious or wrongful acts occurred in premises of which MTRC was the occupier.

(2)  The evidence shows that at 10:45 pm on 31 August 2019, the Operations Control Centre reported a case of passenger disputes in a train compartment (at Platform 3) to the Police for assistance, and at 10:56 pm police officers arrived at Platform 3 and Platform 4 of Prince Edward Station and carried out operations on the trains at the two platforms.  It would appear, therefore, that the Police attended the scene as a result of MTRC’s request for assistance.

(3)  The alleged assault and false imprisonment of the Plaintiff took place at, inter alia, Escalator E1, which had stopped moving.  While it is not clear on the evidence as to who actually stopped the escalator, it stands to reason that the operation of the escalators in Prince Edward Station was under the general control of MTRC.

(4)  MTRC arranged for a passenger train to take the persons arrested at Prince Edward Station, including the Plaintiff, to Lai Chi Kok Station.  It is the Plaintiff’s case that he was throughout being falsely imprisoned by the Police.

19.  In such circumstances, even if the Plaintiff has to show that MTRC was mixed up in, or facilitated, the alleged wrongdoings, I consider that the same is established.  This having been said, I should make it clear that there is no suggestion, and there can be no rational basis to suggest, that MTRC should in any way be held responsible for what happened in Prince Edward Station on the night of 31 August/1 September 2019.

20.  In respect of the second objection, it is clear from the judgment of Lord Kerr in Rugby Football Union, supra, that the test of “necessity” for making a Norwich Pharmacal order does not require the remedy to be one of “last resort”, and that whether the relevant information can be obtained from another source is only one of the relevant considerations in the exercise of the court’s discretion whether to grant relief.  In the present case (according to the evidence filed by MTRC on 7 November 2019), the Police obtained the CCTV footages in relation to Prince Edward Station covering the period from 10:15 pm to 11:59 pm on 31 August 2019 from MTRC pursuant to a search warrant.  On 20 December 2020, the Plaintiff asked the Police to disclose the relevant CCTV footages.  By a letter dated 3 March 2020, the Department of Justice (on behalf of the Police) responded substantively, declining to disclose the CCTV footages on a number of grounds, including that “we fail to see the necessity of your request when your client has already applied for a Norwich Pharmacal order against MTR Corporation for the CCTV Footage (including the Prince Edward CCTV)”.  In other words, MTRC is saying that the Plaintiff can obtain the CCTV footages from the Police, and the Police is saying that the Plaintiff can obtain the same from MTRC.

21.  This is not, in my view, the occasion to consider whether the Plaintiff will eventually be able to obtain the relevant CCTV footages in relation to Prince Edward Station from the Police in his intended civil action.  It can, however, reasonably be anticipated, from a realistic and practical point of view, that the application for disclosure will be resisted (there is certainly no indication from the Police that they would voluntarily disclose the CCTV footages in their possession to the Plaintiff once an action is commenced).  I do not consider the Police to be a practicable alternative source of the CCTV footages.  Furthermore, the copy of the CCTV footages in the possession of the Police is less than what the Plaintiff is seeking in this application: (i) in relation to Prince Edward Station, the copy in the Police’s possession covers the period from 10:15 pm to 11:59 pm on 31 August 2019 only, while the Plaintiff’s application relates to the period from 10:40 pm on 31 August 2019 to 1:30 am on 1 September 2019, and (ii) the Police has not, apparently, obtained any CCTV footages in relation to Lai Chi Kok Station.  MTRC’s second objection cannot therefore be a full answer to the Plaintiff’s application.

22.  No substantial competing interests of the MTRC, or other third parties, have been identified as a counter-balance against the disclosure sought by the Plaintiff.  The concern about data privacy previously raised by MTRC is no longer maintained.  I am unable to see why it would be disproportionate to require MTRC to give pre-action disclosure of the CCTV footages sought by the Plaintiff.

23.  As stated by Lord Kerr in Rugby Football Union, supra, at §17, the essential purpose of the Norwich Pharmacal remedy is to do justice.  Even if (contrary to my view) the Police should be regarded as being a practicable, alternative, source that the Plaintiff could turn to for the relevant CCTV footages, the Plaintiff will only able to obtain them after commencement of an action against the Police, while the information contained in the CCTV footages would likely be of substantial use to the Plaintiff in the proper particularization of his claim against the Police.  In the circumstances, I consider that the interests of justice would be served by ordering MTRC to disclose the relevant CCTV footages to the Plaintiff before the intended action is commenced.

24.  In respect of the third objection, MTRC’s evidence is that none of the CCTV footages in relation to Prince Edward Station recorded during the relevant period on the night of 31 August and 1 September 2019 captured or covered any part of Escalator E1.  However, the Plaintiff’s intended claim is not confined to what happened while he was on the escalator.  His intended claim covers the entire period of alleged false imprisonment from the time that he was on the escalator up to the time when he was eventually released unconditionally by the Police at around 11:00 pm on 2 September 2019.  Moreover, the Plaintiff has made it clear that he intends to seek exemplary damages against the Police.  In assessing whether the conduct of the Police was such as would justify an award of exemplary damages, it seems to me that the overall circumstances prevailing in Prince Edward Station at that time, the acts or behaviour of the passengers inside the station, the number of people that the Police had to control relative to the number of police officers involved, as well as the conduct of the Police in the entire operation, including the alleged unnecessary, indiscriminate and/or disproportionate use of force against civilians, are matters which it would be relevant for the court’s consideration.  I do not therefore consider the mere fact that the CCTV footages in relation to Prince Edward Station sought by the Plaintiff did not capture or cover any part of Escalator E1 is a sufficient objection to the Plaintiff’s application.

25.  Lastly, in respect of the fourth objection, MTRC’s argument is premised on the basis that the Plaintiff’s discovery application only focuses on “what happened in Prince Edward Station”, and the alleged assault occurred only at Escalator E1, and thus (it is argued) there is no basis for the Plaintiff to seek CCTV footages in relation to (i) Lai Chi Kok Station, or (ii) Prince Edward Station other than depicting what happened at Escalator E1 during the period in which the Plaintiff was allegedly assaulted. While some passages in the Plaintiff’s First Affirmation may give rise to an impression that the Plaintiff’s application is confined to what happened in Prince Edward Station[2], it is clear from (i) the relief sought in the Originating Summons, (ii) §3 of his First Affirmation, and (iii) §§14 and 17 of his Third Affirmation, that the Plaintiff’s intended claim includes false imprisonment for the entire period up to his unconditional release from police custody at about 11:00 pm on 2 September 2019.  Also, it is clear from the Plaintiff’s description of the events that he was also assaulted at places other than Escalator E1, eg the cuffing of the Plaintiff’s hands by plastic tie strips was a continuous process which lasted at least until the time when he was brought to Lai Chi Kok Station.

26.  In all, I am satisfied that Norwich Pharmacal relief should granted to the Plaintiff in this case.

DISPOSITION

27.  I make an order in terms of paragraph 1 of the draft Order prepared by the Plaintiff, namely -

“The Defendant do disclose to the Plaintiff’s legal advisors, Messrs Ho Tse Wai & Partners (‘HTW’), and HTW be at liberty to inspect and take copies of, all the close-circuit television footages in Prince Edward Station of the Mass Transit Railway from 10:40 am on 31 August 2019 to 1:30 am on 1 September 2019 and in Lai Chi Kok Station of the Mass Transit Railway from 1:25 am to 2:00 am on 1^st September 2019 within 7 days from the date of this Order.”

28.  In Mr Lau Hing Hon’s Affirmation filed on behalf of MTRC, a concern is raised as to the Plaintiff’s intended use of the CCTV footages for purposes other than the pursuit of his intended action against the Police, and suggests that, in the event the court is minded to grant relief to the Plaintiff, some form of restriction should be imposed regarding the use or further disclosure of any CCTV footages provided by MTRC. In §20 of the Plaintiff’s Affirmation, the Plaintiff states that he has been legally advised that even if no express order is made by the court, the use of the CCTV footages provided by MTRC would still be limited to the purpose of the intended action without leave of the court.  He also states that he had always agreed to such limited use of the CCTV footages and to be bound by any order which may be made by the court as to how he can use the CCTV footages.  In §37 of Mr Cheung’s Skeleton Arguments, an undertaking is offered by the Plaintiff that “unless leave is otherwise given by the Court, he shall only use the CCTV Footage to commence and pursue new legal proceedings against such persons implicated in any wrongdoings as revealed upon the carrying out of such investigation, including but not limited to the Intended Defendants”.

29.  In the circumstances, the order mentioned in §27 above is granted subject to the following undertaking of the Plaintiff:

“Unless leave is otherwise given by the Court, the Plaintiff shall only use the CCTV Footages disclosed by the Defendant pursuant to the Order herein to commence and pursue legal proceedings by him against the Commissioner of Police and/or individual police officers who assaulted, unlawfully arrested, and/or falsely imprisoned the Plaintiff during the period from 10:40 pm on 31 August 2019 to 11:00 pm on 2 September 2019, and shall not copy, use or further disclose the CCTV footages for any other purposes”.

30.  On the issue of costs, the usual order in Norwich Pharmacal applications is that the applicant should bear the costs of the innocent party ordered to make disclosure.  Where there is a genuine doubt on whether the applicant is entitled to the order sought, the usual rule still applies even if the court should ultimately grant the relief (see Totalise plc v The Motley Fool Ltd [2002] 1 WLR 1233, at §22).

31.  On behalf of the Plaintiff, Mr Cheung has offered the following:

(1)  The Plaintiff is to pay the costs of MTRC up to and including MTRC’s consideration of the 1^st and 2^nd Affirmations of the Plaintiff, and for compliance with the order for disclosure, on an indemnity basis, to be taxed if not agreed;

(2)  MTRC is to pay the costs of the Plaintiff save for those covered by (1) above, to be taxed if not agreed.

32.  The basis of the Plaintiff’s proposed order is that “MTRC has taken upon a wholly antagonistic role as if MTRC is the actual tortfeasor, which is self-evident by MTRC’s act of instructing Senior Counsel and incurring wholly disproportionate costs, and meanwhile [the Police] is taking the stance as shown in DOJ’s letter [of 3 March 2020]”[3].

33.  MTRC is not responsible for, and has no control over, whatever stance that may be taken by the Police.  There is, however, some force in Mr Cheung’s argument that MTRC has taken an adversarial stance in this application.  The submissions put forward on behalf of MTRC are no different from those that one sees in ordinary hostile litigation.  This is a factor which the court can take into account in the exercise of its discretion on costs (see Airway Corporation of New Zealand v The Present Partners of Pricewaterhouse Coopers Legal [2002] NSWSC 521, at §11; Dallas Buyers Club LLC v Iinet (No 3) (2015) 327 ALR 695, at §§3-7).  While I agree with Mr Cheung’s submission that the costs which have been incurred by MTRC, as set out in two statements of costs dated 5 March 2020, are wholly disproportionate, I would not regard that matter as evidence that MTRC has adopted a “wholly antagonistic role” in these proceedings, or attach any weight to it in my assessment of the appropriate costs order that should be made.

34.  On the materials before the court, I am not able to rule out the possibility that MTRC may have some genuine doubts on whether the Plaintiff is entitled to the disclosure sought.  Taking everything into account, I consider that the fair order to make would be that (i) the Plaintiff shall pay the costs of MTRC up to and including MTRC’s consideration of the 1^st and 2^nd Affirmations of the Plaintiff, the costs of and incidental to the hearing on 16 September 2019, as well as the costs for compliance with the order for disclosure, on an indemnity basis, to be taxed if not agreed, and (ii) there shall be no order as to the costs of the rest of the application.  I so order.

35.  There shall also be no order as to the costs of and occasioned by the Plaintiff’s application to file and serve the Affidavit of Lau Wing Ning Vannie dated 25 February 2020.

	(Anderson Chow)
	Judge of the Court of First Instance
	High Court

  

Mr Anthony P W Cheung and Mr Leon Ho, instructed by Ho Tse Wai & Partners, for the Plaintiff

Mr Benjamin Yu, SC and Mr Martin Ho, instructed by Herbert Smith Freehills, for the Defendant