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HCPI 664/2009

IN THE HIGH COURT OF THE

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HONG KONG SPECIAL ADMINISTRATIVE REGION

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COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 664 OF 2009

_________________________
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BETWEEN
WONG HON WAI
and
THE SECRETARY OF JUSTICE (for and on

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Plaintiff
Defendant

behalf of the Government of the Hong Kong SAR)

_________________________

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Coram :

Before Master Marlene Ng in Chambers (open to the public)

Date of Hearing

: 9 February 2011

Date of Handing Down Decision :

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24 February 2011

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DECISION
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1.
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On 16 October 2009, the Plaintiff commenced the present

proceedings against the Defendant for damages for personal injuries and
for other loss and damages. The Plaintiff claims that on 27 October 2005

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whilst he was using the swimming pool (Pool) at the Tin Shui Wai
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Swimming Pool (Complex), he suffered injuries as a result of an

accident (Accident) and became a quadriplegic. He further claims that

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the Accident was caused by the negligence and/or breach of statutory

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duty of the government through the Leisure and Cultural Services

Department (LCSD) and/or other departments, which were responsible
for the design, management, operation and staffing of inter alia the Pool.

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2.
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The Plaintiffs application before me is for specific

discovery of documents. To properly understand such application, it is

necessary to start with the background and procedural history of the

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present proceedings.
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I. ACCIDENT
3.

No pleadings have been filed to date, but it appears from the

correspondence between the Plaintiffs solicitors and the Department of

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Justice (DOJ) that are placed before me (Correspondence) and from

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the affidavit evidence filed for the present application (Affidavits) that
the Plaintiffs allegations as to the circumstances of the Accident are

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inter alia as follows:

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(a)

on 27 October 2005, he visited the Complex with some

friends;

(b)
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(c)

his companions ran and jumped into the Pool but were not
admonished by any lifeguard or swimming pool attendant;

he hit his head on the bottom as he dived into the Pool

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(which had a depth of 1.1m) and suffered severe cervical

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spine injury;

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(d)

after a period of time he was rescued by his companion;

(e)

after his companion started to take him to the side of the

Pool, a lifeguard or swimming pool attendant came to assist.

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4.

Since there is no Statement of Claim as yet, the Plaintiffs

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allegations of negligence and/or breach of statutory duty can be elicited

only from the Correspondence and Affidavits. Such allegations, which
the Plaintiffs solicitors have emphasised are without prejudice to any
averment that may be made in the Statement of Claim in due course, are

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summarised in the first schedule to this Decision (1 Schedule). The

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Plaintiff insists that without comprehensive discovery of the relevant

documents by the Defendant it is not possible to properly instruct

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expert(s) on liability and/or properly plead any Statement of Claim,

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which therefore leads to the present application for specific discovery.

So it is by no means clear whether any, some or all of the allegations in

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the 1 Schedule will eventually find their way into the Plaintiffs pleaded
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claim against the Defendant.

This naturally adds a dimension of

uncertainty to any attempt to identify the matters in issue for the purpose

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of the present application.

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5.

However, Mr Law, senior government counsel appearing on

behalf of the Defendant, fairly accepts that the issues on liability are
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likely to lie on whether there have been sufficient precautions against

what he describes as improper or dangerous use of the Pool, which

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precautions may relate to signage and lifeguards at the Pool insofar as

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they are relevant to the nature and circumstances of the Accident.

6.
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But Mr Law disagrees with the suggestion by Mr Millar,

solicitor for the Plaintiff, that the shallowness of the Pool is a design
defect that caused or contributed to the Accident. He says there is (a) no

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inherent danger in having a pool with a depth of 1.1m and (b) no

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evidence has been placed before me to suggest the Pool was at the
material time intended for diving. The Plaintiffs solicitors claim that
the Pool is a leisure complex pool. I note paragraph 2( )( ) of the

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Report of the Working Group on the Review of Public Swimming Pool

Design and Operational Safety (
) published by Leisure Services Division of the Regional
Services Department (RSD) () in February

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1998 (RSD Report) states that

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,
so there is some ambiguity as to whether the depth of the Pool will

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eventually be a true issue in the present proceedings.

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II. PROCEDURAL HISTORY

7.

I next turn to the procedural history of the present

proceedings insofar as relevant to the present application for proper

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understanding of the timing of the application.

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8.

Initially, the protective writ was not served. The Plaintiffs

solicitors sought general adjournment of the 1st Checklist Review

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(CLR) scheduled on 18 March 2010, but it was only postponed to 24

May 2010.
9.

On 16 April 2010, the Plaintiffs solicitors suggested to DOJ

that expert reports on liability would likely include (but not be limited
to) reports from (a) an architect on the design (and in particular the
depth) of the Pool and (b) a life saving society or lifeguard association
on the standards applicable to lifeguards and the implementation or lack
of implementation of such standards.
10.

Upon the request by the Plaintiffs solicitors, the CLR was

adjourned to 15 July 2010. Still the Plaintiff did not serve the writ and

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his solicitors requested further adjournment of the CLR. On 14 July

2010, I directed the Plaintiff to serve the writ on/before 3 September
2010, and on such basis I adjourned the CLR to 11 November 2010. The
Plaintiff served the writ pursuant to my directions, but on 2 November

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2010 his solicitors requested further adjournment of the CLR for, say, 5
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months pending his obtaining expert report(s) on liability to plead the

Statement of Claim. DOJ had no objection to adjournment of the CLR,

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but the parties were unable to reach full consensus on further conduct of
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the action. The Plaintiff rejected DOJs suggestion of engaging the

expert nominated by the Hong Kong Life Saving Society as single joint

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expert on liability and indicated an intention to instruct an overseas

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expert. So at the CLR on 11 November 2010 I granted case management

directions including those set out in paragraph 16 below. The CLR is

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adjourned to 16 June 2011 by which time the Plaintiff should have

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filed/served his Statement of Claim.

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III. DOCUMENTS ALREADY DISCLOSED

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11.

It appears from the Correspondence and Affidavits that the

Plaintiffs solicitors have previously requested the Defendant to disclose

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inter alia the documents set out in the second schedule to this Decision
(2nd Schedule), but I cannot be sure that such list is exhaustive given

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the selective nature of the Correspondence placed before me. Pursuant

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to such requests, the Defendant has disclosed some documents.

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I do not have a full list of the documents already disclosed

by the Defendant, but they include, for example, VCD/CCTV recording

of the relevant area of the Pool at about the time of the Accident, the
layout plan of the Pool, hotline enquiry report dated 9 November 2005,

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letter from the Plaintiffs father and reply by LCSD dated 11 and 26
November 2005 respectively, record of viewing of CCTV recording by
the Plaintiffs family members on 2 December 2005, accident case report
dated 28 October 2005, report from the pool-in-charge Mr Leung Kam-

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tai dated 28 October 2005, various statements by lifeguards and

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amenities assistants, various statements by the Plaintiffs schoolmates,

and photographs showing signage as to water depth and no diving.
13.

On 5 October 2010, DOJ gave copies of inter alia the

following documents to the Plaintiffs solicitors:

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(a)

the RSD Report;

(b)

excerpts from Review of Public Swimming Pools in Hong

Kong 7th 17th September 2000 (MacGregor Report) by

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Mr Peter Stuart Grant MacGregor (Mr MacGregor) of the

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Royal Society for the Prevention of Accidents (Society);

(c)

LCSDs internal memo dated 31 October 2000 in respect of

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the Pool regarding follow-up actions in response to the

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review in the MacGregor Report (LCSD Memo).

14.
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On 30 October 2010, DOJ provided further excerpts of the

MacGregor Report, so ultimately DOJ has disclosed the entire

MacGregor Report (being sections 1-5 and 7-11 and an extract from

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section 6 pertaining to the Pool (Disclosed Section 6)) except for siteQ
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specific

risk

assessment

or

safety

review

together

with

observations/recommendations for the remaining 15 public swimming

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pools (Other Pools) reviewed by Mr MacGregor (Undisclosed

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Section 6).

The Defendant declined the Plaintiffs request for

disclosure of Undisclosed Section 6.

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IV. SUMMONS
15.

At the CLR on 11 November 2010, I granted inter alia the

following directions:
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(a)

the Plaintiff do take out inter partes application for specific

discovery as specified in Part G of his PI Questionnaire

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dated 8 November 2010 and/or for specific discovery of any

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other documents that he considers to be relevant and

necessary for this stage of the proceedings;

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accompanied by its statement of truth;

(c)

Defendant to file/serve his Defence.

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16.

there be general extension of time until further order for the

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there be extension of time until 31 May 2010 for the

Plaintiff to file/serve his Statement of Claim, which shall be

On 24 November 2010, pursuant to Order 24 rule 7 of the

Rules of the High Court (RHC), the Plaintiff issued a summons for
specific discovery of the following documents by affidavit within 7 days

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(Summons):
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(a)

section 6 of the MacGregor Report (Document A);

(b)

the document to which the RSD Report is appendix 2

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(Document B);
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(c)

all documents coming into existence between February

1998 and 27 October 2005 (or to now) as a result of the

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RSD Report insofar as they have specific or general

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relevance to the Pool (Document C);

(d)

all documents coming into existence between 18 September

2000 and 27 October 2005 (or to now) as a result of the

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MacGregor Report insofar as they have specific or general

relevance to the Pool (Document D);

(e)

all documents coming into existence between September

2000 and October 2005 (or to now) as a result of change of

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signage at the Pool (Document E);

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(f)

all documents coming into existence between September

2000 and October 2005 (or now) as a result of briefings to

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lifeguards at the Pool (Document F).

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The Plaintiff has filed Mr Millars 1st and 2nd affidavits dated

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23 November 2010 and 10 January 2011 respectively in support of the

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Summons. The Defendant has filed the affirmations of Chan Yuen Man
(Ms Chan, LCSDs Assistant District Leisure Manager (Yuen Long))

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and Chan Ming Cheong Horman (Mr Chan, LCSDs Senior Leisure
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Manager (Aquatic Venues)) both dated 23 December 2010 in opposition.

18.
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Mr Millars written submissions have refined the requests

for specific discovery of Documents C and D by the following

reformulations:
(a)

for Document C, (i) documents as to promotion of

swimming safety referred to in paragraph 10 of [Ms Chans
affirmation] (and adopted by [Mr Chans] affirmation),

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whether specific to [the Pool] or of general application to

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swimming pools and therefore including [the Pool], and

(ii) the documents referred to (and by implication

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identified by [LCSD]) as to follow-up actions referred to

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on the fifth line of paragraph 11 of [Ms Chans] affirmation,

and adopted in [Mr Chans] affirmation;

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(b)

for Document D, documents coming into existence as a

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result of the MacGregor Report having specific or general

relevance to [the Pool], certainly in so far presently

identified and known to the deponents and/or the DOJ.

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19.
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In his submissions at the hearing before me on 9 February

2011 (Hearing), Mr Millar further reformulated the description of the

class of documents in paragraph 18(b) above as follows: documents

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coming into existence as a result of the MacGregor Report having

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specific or general relevance to [the Pool] but restricted to those

presently identified and known to LCSD and/or DOJ as referred to in the

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affirmations of Ms Chan and Mr Chan.

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20.

Mr Millar further confirmed the Plaintiff would abandon his

specific discovery request for Document C save and except for (a) the
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documents described in paragraph 18(a)(i) and (ii) above that have come
into existence between February 1998 and 27 October 2005 (Promotion

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Documents and Follow-up Documents or collectively New

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Document C) and (b) the documents described in paragraph 19 above

that have come into existence between 18 September 2000 and 27

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October 2005 (New Document D).

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21.

In the course of his submissions in reply at the Hearing, Mr

Millar applied for leave to substitute the request for specific discovery of
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Document F to a request for all documents including operational

guidelines and briefings that came into existence between September

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2000 and October 2005 as to guidance or briefing given to lifeguards at

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[the Complex/Pool] concerning their duties on enforcing rules and

regulations on safety at [the Complex/Pool] (New Document F)
(Reformulation Application). Mr Law opposes such application.

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22.

I will deal with the Reformulation Application in greater

detail below, but suffice to say here that I dismiss such application
without prejudice to any future application by the Plaintiff for specific
discovery of the aforesaid guidelines and notices.

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Since Mr Millar

confirmed the Plaintiff would not seek specific discovery of Document F

irrespective of the outcome of the Reformulation Application, I now

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formally dismiss the Plaintiffs application for specific discovery of

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Document F.

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V. LEGAL PRINCIPLES
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23.

A party may apply for an order requiring any other party to

make an affidavit stating whether any document or any class of

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document specified or described in the application is or has at any time

been in his possession, custody or power, when he parted with it and

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what has become of it (see Order 24 rule 7 of the RHC). But if the court
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is satisfied that discovery is not necessary, or not necessary at that stage

of the cause or matter, it may dismiss or adjourn the application, and

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shall in any case refuse to make such an order if and so far as it is of

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opinion that discovery is not necessary either for disposing fairly of the
cause or matter or for saving costs (see Order 24 rule 8 of the RHC).
(a) Courts approach
24.

Hong Kong Civil Procedure 2011 Vol.1 para.24/7/1 at

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pp.549 states inter alia as follows:

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But this is not sufficient unless a prima facie case is

made out of (a) possession, custody, or power, and (b)
relevance of the specified documents This prima facie
case may be based merely on the probability arising from the
surrounding circumstances or in part on specific facts deposed

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to. See too Berkeley Administration v. McClelland[1990]

F.S.R. 381 where at 382 the court restated the principles as
follows: (1) There is no jurisdiction to make an order under
RSC, O.24 r.7, for the production of documents unless (a)
there is sufficient evidence that documents exist which the
other party has not disclosed; (b) the document or documents
relate to matters in issue in the action; (c) there is sufficient
evidence that the document is in the possession, custody or
power of the other party. (2) When it is established that those
three prerequisites for jurisdiction do exist, the court has a
discretion whether or not to order disclosure. (3) The order
must identify with precision the document or documents or
categories of document which are required to be disclosed, for
otherwise the person making the list may find himself in
serious trouble for swearing to a false affidavit, even though
doing his best to give an honest disclosure

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(see also Lee Nui Foon v Ocean Park Corp (No 1) [1995] 2 HKC 390).

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(b) Timing of the application

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25.

The court has a wide discretion when to order discovery in

the interest of justice. There is jurisdiction to order specific discovery

even before service of the statement of claim, but the making of such an
order generally calls for definition of the issues. Such order should not
normally be made and the practice is to refuse discovery before close of
pleadings save in exceptional circumstances because until at least a
statement of claim has been delivered the court can seldom know what
the matters in question in the action are. It is generally inexpedient and
unnecessary to order discovery until the issues have been defined by the

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pleadings (see Hong Kong Civil Procedure 2011 Vol.1 paras.24/3/5 and
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24/7/1 at pp.529 and 549).

(c) Relevancy
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26.

It is for the party seeking specific discovery to demonstrate

a prima facie case for inter alia the relevance of the documents sought to
the matters in question.

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The well-known test for determining

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relevance is set out in The Compagnie Financiere et Commerciale du

Pacifique v The Peruvian Guano Company (1882) 11 QB 55, 63 as
follows:

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It seems to me that every document relates to the

matters in question in the action, which not only would be
evidence on any issue, but also which, it is reasonable to
suppose, contains information which may not which must
either directly or indirectly enable the party requiring the
affidavit either to advance his own case or to damage the case
of his adversary. I have put in the words either directly or
indirectly because, as it seems to me, a document can
properly be said to contain information which may enable a
party requiring the affidavit either to advance his own case or
to damage the case of his adversary, if it is a document which
may fairly lead him to a train of enquiry, which may have
either of these two consequences: the question upon a
summons for a further affidavit is whether the party issuing it
can shew, , that the party swearing the first affidavit has
not set out all the documents falling within the definition
which I have mentioned and being in his possession or control

(see also Lee Nui Foon at p.392 and Full Range Electronics Co Ltd v
General-Tech Industrial Ltd & anor [1997] 1 HKC 541, 544).
27.

On the aforesaid test of relevance, the real question is

whether the documents sought to be discovered are relevant to the issues

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between the parties to the litigation or, putting it in another way, to the
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questions in the action (see Matthews and Malek, Disclosure, 3rd ed

(2007) para.5.09 at p.127).
28.

There has been suggestion that the issues or questions must

be those identified in the pleadings (see Sun Yuet Tai Limited v British

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American Tobacco Company (HK) Limited CACV 95/1999 (unreported,

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4 June 1999) para.24), but in Thorpe v Chief Constable of Greater

Manchester Police [1989] 2 All ER 828 it was held that matters can be

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in question even though not expressly raised on the pleadings. At

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p.833, Neill LJ said as follows:

It is clearly established, however, that the matters in
question cover wider ground than the issues as disclosed in
the pleadings. Thus a party is obliged to disclose any
document which it is reasonable to suppose contains
information which may enable the party applying for
discovery either to advance his own case or to damage that of
his adversary or which may fairly lead to a train of inquiry
which may have either of these two consequences. It follows
that discovery is not necessarily limited to documents which
would be admissible in evidence.

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29.

But even if an issue is raised in the pleadings, it is not

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necessarily determinative as to whether it relates to a matter in

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question. Cheung JA in Pauls Model Art Gmbh & Co v UT Limited &

ors CACV139/2005 (unreported, 14 December 2005) para.25 said as

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follows: Discovery is not required of documents which relate to

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irrelevant allegations in pleadings which even if substantiated could not

affect the result of the action: Allington Investments Corp & Others v
First Pacific Bancshares Holdings Ltd & Another [1995] 2 HKC 139
(see also Deacons v White & Case HCA 2433/2002, DHCJ Poon (as he
then was) (unreported, 13 March 2003) paras.20-21 and Re the Estate of
Ng Chan Wah HCAP 5/203 (unreported, 5 March 2003) per Chu J).
30.

Mr Law advocates the approach adopted by Colman J in O

Company v M Company [1996] 2 Lloyds Rep 347, 350-351, which he

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submits illustrates how the Peruvian Guano principle should be applied:

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The case of the plaintiffs or the defendants

respectively can be defined only by looking at the pleadings.
It must be defined by reference to the plaintiffs pleaded claim
in its general sense, as distinct from its detailed exposition and
by the defendants pleaded defence in the sense of its general
refutation of the plaintiffs claim. What matters for discovery
purposes is the claim and defence to it in the broadest sense
and not to the detailed particulars of either claim or defence. A
document in a defendants possession, custody or power which
provides information as to a ground not hitherto pleaded in a

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cargo claim upon which it can be said that they failed to

exercise due care of the cargo is just as relevant for discovery
purposes as one which contains information as to a ground of
want of due care which has already been pleaded.
The principle was never intended to justify demands for
disclosure of documents at the far end of the spectrum of
materiality which on the face of it were unrelated to the
pleaded case of the plaintiff or defendant and which were
required for purely speculative investigation On the
contrary, the document or class of documents must be shown
by the applicant to offer a real probability of evidential
materiality in the sense that it must be a document or class of
documents which in the ordinary way can be expected to yield
information of substantial evidential materiality to the pleaded
claim and the defence to it in the broad sense which I have
explained. If the document or class cannot be demonstrated to
be clearly connected to issues which have already been raised
on the pleadings or which would in the ordinary way be
expected to be raised in the course of the proceedings, if
sufficient information were available, the application should
be dismissed.

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31.
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The approach in O Company was applied by Findlay J in A

v B [1998] HKLRD (Yrbk) 542 and Fung J in Chan Kwok Hong v AXA
China Region Isurance Company (Bermuda) Limited & anor HCA

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2563/2007 (unreported, 19 May 2009). But DHCJ Horace Wong SC in

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Chan Hung v Yung Kwong Chung (unreported, 15 January 2009)

acknowledged the observation by the editors of Hong Kong Civil

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Procedure 2009 that such approach represented a marked departure

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from the very wide Peruvian Guano test that Hong Kong courts have
accepted as the appropriate test to determine relevance, and he doubted

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whether it was open to the Court of First Instance to follow the gloss
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Colman J put on the Peruvian Guano approach in O Company in view of

the Court of Appeals adoption of the Peruvian Guano test in Deak & Co

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(Far East Ltd) v NM Rothschild & Sons Ltd & ors [1981] HKC 78.
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DHCJ Horace Wong SC confessed he could not reconcile the difference

between the test advocated by Colman J and the much wider formulation
in Peruvian Guano. On appeal in CACV 34/2009 (unreported, 4

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September 2009), the Court of Appeal did not disturb DHCJ Horace
Wong SCs discussion of the relevant legal principles.

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32.

In EAA Securities Limited v Chan Lin Mui & anor DCCJ

4015/2003 (unreported, 31 July 2008) paras.21-27, I too preferred the

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Peruvian Guano test (see also Wu Ching Sau v New World First Bus
Services Limited HCPI 767/209 (unreported, 9 September 2010)). In

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coming to this view, I am comforted by Man Cheung International

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Traders Limited & anor v CLSA Limited formerly trading as Credit

Lyonnais Securities (Asia) Limited CACV 97/2007 (unreported, 25

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September 2007) para.37 in which the Court of Appeal allowed certain

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specific discovery on Peruvian Guano terms, ie that such discovery

may promote a relevant line(s) of inquiry and have the effect of

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buttressing the defendants case or of undermining that of the plaintiff,

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and Pauls Models Art GmbH & Co KG v UT Limited & ors HCA
1501/2000 (unreported, 18 January 2011) in which DHCJ Coleman SC

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said at para.52 as follows:

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One area of dispute at the hearing was whether or not the test
of relevance in Hong Kong is still that in the Peruvian Guano
case, [counsel for the 4th and 5th defendants] suggesting that the
excesses of that type of discovery are to be deplored. But,
whatever one might personally think of the application of that
test to many cases, I accept submission [by counsel for
the plaintiff] that the Peruvian Guano test is still the applicable
test even after the Civil Justice Reforms of 2009 (when the
possibility of removing that test was rejected).

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(d) Necessity burden of proof

33.

According to Hong Kong Civil Procedure 2011 Vol.1

para.24/8/1 at p.553, if the party seeking discovery establishes a prima

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facie case, it is for the party objecting to the order for discovery to
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satisfy the court that the discovery is not necessary either for disposing
fairly of the cause or matter or for saving costs under Order 24 rule 8 of

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the RHC.
34.

However, Mr Law has drawn my attention to Deak & Co

(Far East Ltd) in which the Court of Appeal, without any deep analysis,

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said at pp.80-81 that in order to obtain an order for discovery under O

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24 r 7, the party seeking it has to make out a prima facie case: that
discovery thereof is necessary either for disposing fairly of the cause or

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matter or for saving costs. This was followed in Chan Kwok Hung at
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para.18 and Chan Hung at para.22.

35.
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But neither Mr Millar nor Mr Law has cited Innovisions Ltd

v Chan Sing Chuk & ors [1992] 1 HKC 348, 351 in which the Court of
Appeal citing the following observation of Parker LJ in Dolling-Baker v

I
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Merrett [1990] 1 WLR 1205, 1209 with approval under [Order 24

K
L

rule 8], it is for the party who is objecting to any such order to satisfy the
court that discovery by list or affidavit is not necessary (see also

K
L

Alick Au Shui Yuen v Sir David Ford, Deputy to the Governor & ors
M
N

HCMP2827/1990, Kaplan J (unreported, 27 November 1990) para.22

and The Estate of Wan Hung, deceased as represented by its

M
N

administratrix Wan Tin Chung & anor v Kwan Yick Securities

O
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(International) Ltd HCA 1421/2006, DHCJ Muttrie (unreported, 18

April 2007) para.28).
36.

For the purpose of the Summons, I am prepared to assume

(without deciding the point) that the burden is on the Defendant to show

O
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that the documents sought are not necessary either for disposing fairly of
S

the cause or matter or for saving costs.

T
U

S
T

(e) Necessity evidential materiality

A
B
C

37.

Although I do not embrace the approach by Colman J in O

Company on the test of relevancy, Mr Law is correct in saying the

learned judges observations are still pertinent for considering whether
discovery of the documents sought is necessary either for fairly

B
C
D

disposing of the cause or matter or for saving costs. In this respect, I

E
F
G
H
I
J
K
L
M
N
O
P
Q
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S
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refer to paras.32-33 of the judgment of DHCJ Horace Wong SC in Chan

Hung as follows:
32. In any given case, there is likely to be a spectrum of
evidential materiality within which documents may fall. There
may be documents which are central to the pleaded issues; but
there may also be documents which fall at the other end of the
spectrum in that though they may fall within the letter of
Lord Justice Bretts formulation of relevance for discovery
purposes, they are documents which are unlikely to contain or
yield information of such evidential materiality to the pleaded
case (in the broad sense mentioned above) of the parties as to
make their disclosure necessary for the fair disposal of the
proceedings or to save costs. The Court is entitled to take the
view that although relevance in the Peruvian Guano sense has
been established, it is not necessary for them to be disclosed.
The power to refuse unnecessary discovery of documents is
expressly conferred by the rules of court.
33. Indeed in the O Company v M Company case mentioned
above, after dealing with the question of relevance, Colman J
further held at p.352:
I would only add that if I had held that the
applicable analysis of relevance derived from
Compagnie Financiere du Pacifique v Peruvian
Guano Co., sup., was wide enough to include as
relevant those documents in respect of which I have
refused to make an order for discovery, I should in
each case have held that discovery was not necessary
either for disposing fairly of the matters in issue or
for saving costs under O.24. r.8. Documents of
which discovery is necessary for the fair disposal of a
matter in issue must at least have a demonstrable
evidential materiality. For the reasons which I have
given in relation to relevance I am not satisfied that
all those documents covered by items 9,10 and 20 do
so.
Hence Colman J would have arrived at the same conclusion by
applying O.24 r.8 if he had simply followed the letter of
Brett L.J.s formulation in the Peruvian Guano case on the
question of relevance.

E
F
G
H
I
J
K
L
M
N
O
P
Q
R
S
T
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A
B
C

(f) Necessity - width of discovery sought

38.

Where the applicant seeks to see a class of documents, the

class must not be defined or described so widely as to include documents

which are not relevant to the issue (see Molnlycke AB v Proctor &

B
C
D

Gamble Ltd (No. 3) [1990] RPC 498 approving Fuji Photo Film Co Ltd
E
F

v Carrs Paper Ltd [1989] RPC 713 and Re Estate of Ng Chun Wah). In
other words, the abovementioned prerequisites must be established in

E
F

respect of the class described as a class and not as regards some in the
G
H

class only (see Hong Kong Civil Procedure 2011 Vol.1 para.24/7/1 at
p.549). If the class of documents sought covers a large number of

G
H

documents, and disclosure is resisted on the grounds that it would be

I
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oppressive , the Court will weigh against any such potential

oppression the possible injustice that would be caused if the material

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were not available at trial (see Hong Kong Civil Procedure 2011
K

Vol.1 para.24/2/10 at p.526).

39.
M
N

In Culturecom Limited & ors v Chin Kwok Chung alias

Tony Zie HCA 6800/1990 (unreported, 10 November 1995), the 3rd

defendant sought specific discovery of all papers and documents

M
N

relating to 7 legal actions save and except for those papers and
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documents already discovered by the plaintiffs. It was held that:

The first difficulty is that the very definition of the class of
documents as all papers and documents relating to a
particular legal action is far too wide to permit a person faced
with an order in those terms ever to be sure that he has
complied with it. Secondly, it is not enough that a document
relates in some way to proceedings.
it appears to be the 3rd defendants case that in the papers
relating to [a particular legal action], there may be some
documents which, if the defendant saw them, might be
considered to be relevant to the issues in those proceedings,
but [counsel for the 3rd defendant] was unable to name a
particular specific issue and identify a document or a class of
documents which could be shown to be directly related to that

O
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Q
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issue in such a way as to satisfy the requirements for specific

discovery.
As a matter of common sense, it must be that many documents
relating to the various proceedings referred to must be quite
irrelevant to the issues to be tried between the plaintiffs and
the 3rd defendant, and on that ground alone, the 3rd defendants
application must fail.
It is not enough to show the possible relevance of some parts
of a class of documents: it is necessary to identify the
documents or show that the whole class must be relevant.
It is not sufficient to speculate as to whether documents might
be helpful. It is necessary to demonstrate that they satisfy the
criteria.

It is not enough to say that a particular class of

documents may be relevant: it is necessary to be much more
specific and to identify the issue, the document and the manner
in which it relates to the issue and is probative.
The application is a fishing expedition.
It is
misconceived and it will be dismissed.

B
C

E
F
G
H
I
J
K

40.

Further, in Molnlycke AB, Mummery J noted that an order

for discovery was discretionary, and at p.505 held that the specific

B
C
D
E
F
G
H
I
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K

discovery sought was too wide for it embraced documents which did not
L
M

relate to the matters in question between the parties in the action, and
were not necessary for disposing fairly of the action or for saving costs.

L
M

He found it would have been oppressive to order discovery on the scale

N
O

sought by the defendants of documents which were no more than

marginally relevant background material to one of the issues in the

N
O

action. At p.503 he opined that the court would take into account
P
Q

considerations such as the value of the discovery to the person seeking it

and the burden imposed on the party giving it with a view to restricting

P
Q

the volume of documents and the labour and expense involved to that
R

which was necessary for fairly disposing of the issues in this case.

R
S

(g) Necessity fishing request

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41.

There is no doubt that discovery will not be ordered for the

T
U

A
B
C

purpose of fishing or to enable a party to turn a non-issue into an issue

(see HKFE Clearing Corp Ltd v Yicko Futures Ltd [2006] 2 HKC 233).
In Re the Estate of Ng Chan Wah, Chu J stated that [it] is not sufficient
for the plaintiffs to say that because there is on the pleading allegation of

B
C
D

improper conduct against the defendants as executors, they are entitled to

E
F

test the basis of the estate accounts generally or to check the accuracy of
the items presented in the estate accounts, irrespective of whether they

E
F

are in issue. It is not the purpose of discovery to give the plaintiffs an

G
H

opportunity to hunt around the documents in the hope that they will
reveal some improprieties on the defendants part or will provide

G
H

information for them to pursue more enquiries.

I
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(h) Redaction of discovery documents

42.

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Parts of documents disclosed in discovery may be blanked

out as irrelevant because the discovery is restricted to documents or

entries in documents relating to a matter in question (see Hong Kong

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Civil Procedure 2011 Vol.1 para.24/2/10 at p.526). The making of an

M
N

order for specific discovery does not prevent the respondent from
covering up irrelevant parts (see Hong Kong Civil Procedure 2011

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N

Vol.1 para.24/7/1 at p.549).

O

43.
Q
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In SMSE v KL [2009] 5 HKLRD 770, 784, Tang VP said as

Q

follows:
40.

S
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41.

It is accepted that only material documents could be

ordered to be produced. The same applies to entries in
documents. see per Kempster JA (as he then was) at
p.404 in Guess?, Inc v Lee Seck Mon [1989] 1 HKLR
399.
The headnote to the report in GE Capital Corp v
Bankers Trust Co [1995] 1 WLR 172, a decision of the
English Court of Appeal shows:

R
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It was well established that a party was entitled to seal

up or cover up parts of a disclosed document on the
ground of irrelevance just as it could withhold an entire
document on that ground, provided that the irrelevant
part could be covered without destroying the sense of
the rest or making it misleading

B
C

B
C
D

E
F

44.

With the above legal principles in mind, I turn to the

specific documents being Documents A, B, E and F and New Documents

C and D.

E
F

VI. DOCUMENT A
H
I

45.

The Plaintiff seeks specific discovery of Document A, ie

section 6 of the MacGregor Report titled Site Specific Inspections.

J
K

The Defendant has already disclosed Disclosed Section 6 which

specifically concerns the Pool, but declines to make disclosure of

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K

Undisclosed Section 6 which relates to the Other Pools.

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M

46.

The MacGregor Report is the result of sample review of 16

public swimming pools in Hong Kong carried out in September 2000.

N
O

Section 2 thereof titled Purpose of Report sets out the terms of

reference as follows:
(a)

P
Q
R
S

N
O

identify hazards associated with the operation of the

swimming pool facilities;

(b)

assess the risk associated with such hazards;

(c)

review in-house safety arrangements and documentation

relating to the pool area (in particular normal operating
procedures and emergency action plans including a review

P
Q
R
S

of lifeguard duties, training schedules, qualifications,

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incident reporting and the provision of information to users

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of the facilities);

(d)

assess the pool area with recommendations for further

improvement where necessary;

(e)

visit 16 local swimming pools; and

(f)

meet with representatives of the Hong Kong Life Saving

Society.

C
D
E
F

47.
G

In section 5 of the MacGregor Report titled Summary, Key

Issues and Recommendations, observations/recommendations were

made inter alia as follows:
(a)

[it] was noted that the older Swimming Pools are creating
less of a hazard than the new Leisure complex; it is
recommended that an urgent review be undertaken of the

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suitability of play equipment in the leisure pools

K

(paragraph 5.1);
(b)

[in] view of the High Levels of poolside supervision the

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number of accidents is unacceptable (paragraph 5.3);

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(c)

[safety] signage is confusing and in some instances the

colour is more to do with design effect than highlighting

M
N

safety. They do not conform to recommended (e.g. UK)

O

protocols (paragraph 5.3).

48.
Q

Disclosed Section 6 that specifically pertains to the Pool

states inter alia that [signage] is the wrong colour see previous item.

T
U

Q
R

49.
S

The LCSD Memo sets out feedback concerning the Pool

which includes inter alia that [the] colour of the signage will be
amended when it has been finalised by the Department.

S
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A
B
C

(a) Issue
50.

Clearly, LCSD is in possession of section 6 of the

MacGregor Report. The disputed issues are (a) whether the Plaintiff has
established a prima facie case that Undisclosed Section 6 is relevant to

B
C
D

the question(s) or matter(s) in issue, and (b) whether disclosure of

E
F
G
H

Undisclosed Section 6 is necessary for disposing fairly of the cause or

matter or for saving costs.

F
G

(b) Plaintiffs case

51.

According to letters from the Plaintiffs solicitors to DOJ

dated 13 October, 2 November, 4 November and 10 November 2010 and

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Mr Millars affidavits and submissions, Undisclosed Section 6 is relevant

to the questions or matters in issue in the present proceedings because:
(a)

the observation in section 5.1 of the Macgregor Report that

the older Swimming Pools are creating less of a hazard
than the new Leisure complex suggests that observations/

recommendations
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for

older

swimming

pools

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in

Undisclosed Section 6 will be relevant for comparison with

those for the Pool being one of the new leisure complex

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N

pool;
O

(b)

the

non-disclosure

of

the

previous

item

within

Undisclosed Section 6 as to signage and colour makes it

O
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impossible to fully understand the observation in Disclosed

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Section 6 inter alia that [signage] is the wrong colour see

previous item.

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S
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52.

Further, the Plaintiff by his solicitors letter to DOJ dated 2

November 2010 and by Mr Millars 1st affidavit claim that in disclosing

the entire MacGregor Report except for Undisclosed Section 6 the

Q
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S
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A
B
C

Defendant must have accepted that the MacGregor Report is relevant,

therefore it is not entitled to withhold Undisclosed Section 6 on the basis
of irrelevancy.

B
C
D

(c) Defendants case

E
F

53.

As explained in DOJs letters dated 5 and 30 October 2010

and in Mr Chans affirmation, the Defendant resists disclosure of

E
F

Undisclosed Section 6 on the grounds that it is irrelevant and that the

G
H

request exceeds the proportionate scope of necessary disclosure for this

stage of the proceedings when the basis of the Plaintiffs claim has not

G
H

yet been pleaded. Mr Law argues that disclosure of Undisclosed Section

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6 is not required unless the Plaintiff can at a later stage in the

proceedings by pleadings or otherwise demonstrate how the situation of

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the Other Pools is relevant to the particular ground(s) to his claim.

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(d) Discussion
54.

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N
O
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above.

I first deal with the Plaintiffs arguments in paragraph 51(b)

The starting premise is Disclosed Section 6 in which Mr

MacGregor opines that the colour of the signage at the Pool is wrong.
55.

Mr Law reminds (and Mr Millar accepts) that the Defendant

has disclosed section 11 (appendices) of the MacGregor Report

M
N
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(Section 11) which sets out the UK protocols and/or the Societys
Q
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requirements concerning signage information and in particular the

recommended colours for signage for different purposes and/or

Q
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information (Signage Protocols), so the Plaintiff already has in his

S
T
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possession documentary information as to the proper colours for signage

as recommended by Mr MacGregor and/or the Society. Mr Law argues
that in such circumstances a mere reference in Disclosed Section 6 to

S
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U

A
B
C

see previous item cannot justify a duty to disclose the entire

Undisclosed Section 6. After all, the test remains that of relevance and
necessity.

B
C
D

56.
E
F

In my view, in respect of Mr Millars arguments in

paragraph 51(b) above, it is difficult to understand why disclosure of all

observations and comments on site-specific risk assessment or safety

E
F

review of all the Other Pools and not just the particular entry on signage
G
H

colour in the previous item is required to make sense of Mr

MacGregors observation in Disclosed Section 6 that the signage colour

G
H

at the Pool is wrong. Indeed, in his oral submissions before me, Mr

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Millar said that for the purpose referred to in paragraph 51(b) above, it is
of no moment that the previous item is in respect of which particular

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public swimming pool so long as such previous item on signage colour

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is disclosed.

57.
M
N

I agree that since Mr MacGregors observation on signage

colour at the Pool in Disclosed Section 6 is not free-standing, in order

not to destroy the sense of such observation or to make it misleading, the

M
N

relevant entry in the previous item in Undisclosed Section 6 insofar as

O
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it relates to signage colour (but not of other matters) should not be

redacted and in fact should be disclosed (see SMSE at paragraph 43

O
P

above). The Signage Protocols of themselves do not explain what Mr

Q
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MacGregor considered to be wrong with the signage colour at the

Pool, but the Defendant need not disclose the entire Undisclosed Section

Q
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6 to bring enlightenment to Mr Macgregors views as to the wrong

S

colour of the signage at the Pool.

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S
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58.

I now turn to the Plaintiffs arguments in paragraph 51(a)

A
B
C

above, which relate to his application for disclosure of the entire section
6 of the MacGregor Report for drawing comparison between Mr
Macgregors comments/recommendations for the older and the new
public swimming pools to see how the latter is more hazardous.

E
F

59.

First of all, I am unable to discern from paragraph 5.1 of the

MacGregor Report any indication that the less hazardous nature of the

B
C
D
E
F

older public swimming pools is likely to include depth of the pool as

G
H

suggested in Mr Millars written submissions. Such submission does not

sit well with the fact that Mr Macgregors observation that the older

G
H

Swimming Pools are creating less of a hazard than the new Leisure
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Complex is immediately followed by his recommendation that an

urgent review be undertaken of the suitability of play equipment in the
leisure pools under the very same bullet point.

K
L
M
N

The Plaintiffs

allegations against the Defendant in the 1st Schedule do not concern any
play equipment.
60.

Secondly, as evident from appendices 2-3 of the RSD

Report, the Pool and Other Pools are physically distinct in nature, size,

K
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M
N

shape and depth. Also as seen from the terms of reference and contents
O
P

of the MacGregor Report, including the contents of Disclosed Section 6,

it is likely that Mr MacGregors site-specific assessment and review of

O
P

the Other Pools cover wide-ranging matters.

Q
R

61.

Mr Millar submits that without seeing Undisclosed Section

6, it is difficult to say whether they support or adversely affect any

S
T
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partys case (if they would have such an effect), and asks me to infer that
DOJs refusal to make disclosure of Undisclosed Section 6 suggests that
there is something therein that would adversely affect the defendants

S
T
U

A
B
C

case or, conversely, would assist the case to be brought for [the
Plaintiff], especially when Undisclosed Section 6 seemingly comprises
9 pages in total.

B
C
D

62.
E
F

But it is clear from the legal principles discussed above that

a party is entitled to blank out or cover up irrelevant parts of documents

when making discovery, so I am unable to infer anything sinister merely

E
F

from the Defendants refusal to disclose Undisclosed Section 6 on the

G
H

basis that such part of the MacGregor Report is irrelevant. For the same
reason, I am also unable to accede to Mr Millars arguments in paragraph

G
H

52 above.
I
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63.

In Berkeley Administration Inc & ors v McClelland & ors

[1990] FSR 381, the defendants only disclosed parts of documents in

K
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edited form and stated on oath that the covered up parts were not
germane to any issue in suit. In an application for disclosure of the

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whole of the documents, the English Court of Appeal declined to order

M
N

the documents to be disclosed. I respectfully agree with the observations

of Mustill LJ (with whom Leggatt LJ agreed) at p.383 that [plainly] the

M
N

atmosphere in the case is such that the plaintiffs have grave skepticism
O
P

about anything said on behalf of the defendants, but it is not a purpose of

discovery to give the opposing party the opportunity to check up on

O
P

whether discovery had been properly carried out. He added that [this]
Q
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S
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seems to be a matter which is much better left for the trial judge to deal
with if and when it is pursued.
64.

I agree with Mr Law that the comparison exercise alluded to

in paragraph 51(a) above serves to highlight the Plaintiffs inability to

make out a prima facie case of relevancy of the site-specific situation of

Q
R
S
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A
B
C

the Other Pools as at September 2000 to the Accident in October 2005.

65.

Mr Law draws analogy with O Company which concerns a

claim for loss and damage of cargo as a result of the sinking of the
defendants vessel following explosions/fires.
E
F

B
C
D

Colman J was not

persuaded that the likelihood of evidentially material information

emerging from documents or classes of documents which were not

E
F

shown to relate to parts of the vessel in or in connection with which the

G
H

explosions/fires were initiated or the cargo was lost was sufficiently

great to justify disclosure the same.

He further held that the mere

G
H

possibility of such documents yielding information which could form the

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basis of inferences material to the issues which would be of relatively

insignificant evidential weight did not justify discovery of the wide

I
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scope requested.
K
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66.

I agree with Colman J that documents of which discovery is

necessary for fair disposal of a matter in issue must at least have

M
N

demonstrable evidential materiality. On the materials placed before me

and given the nature and circumstances of the Accident, I am unable to

M
N

accept the arguments in paragraphs 51(a) and 61 above, which are

O
P

tantamount to suggesting that the Plaintiff requires access to the

observations/ recommendations on the Other Pools in Undisclosed

O
P

Section 6 to carry out the comparison exercise between the older and
Q
R

new public swimming pools before he can ascertain whether there are
any site-specific observations/recommendations on the Other Pools that

Q
R

may be relevant to the nature and circumstances of the Accident. In my

S
T
U

view, this is plainly an attempt to hunt around for documents in the

hope they will reveal information for the Plaintiff to pursue more
enquiries.

S
T
U

67.

Thirdly, in considering whether disclosure of Undisclosed

Section 6 is necessary at that stage of the cause or matter under Order

24 rule 8 of the RHC, it must be remembered there are no pleadings as

C
D

yet at this stage and the true issues have not been formally crystallised.
E
F

Hence, the purpose of the present specific discovery application, as Mr

Millar claims, is to enable the Plaintiff to instruct expert(s) on liability

E
F

and plead his case. In my view, it is quite unnecessary for the Plaintiff to
G

look to the condition of the Other Pools as at September 2000 to do so.

68.
I
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If the Plaintiff sees fit to plead a case about signage at the

Pool in October 2005, the Defendant has already disclosed photographic

reproductions of the colour and layout of signage at the Pool and/or other

I
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public swimming pools from pre-2000 to 2005, which signage can be

K
L

viewed against the Signage Protocols set out in Section 11. As Mr

Millar has observed, the Signage Protocols note that in 1988 the

K
L

Societys Water Safety Committee approved a range of pictogram signs

M
N

for water safety with different-coloured lettering and pictograms for

different purposes, including a recommendation of red background,

M
N

white text for prohibitory information such as No Swimming and No

O
P

Diving. I fail to see how site-specific observations/recommendations

concerning the Other Pools in the MacGregor Report or (if referred to

O
P

therein) signage colour at the Other Pools in September 2000 (apart from
Q
R

the entry for the previous item) will facilitate the Plaintiff (if he sees
fit) in pleading any allegation of negligence or breach of statutory duty

Q
R

premised on any discrepancy between signage colour for prohibitory

S
T
U

information at the Pool at the time of the Accident and the requirements
under the Signage Protocols. After all, there is no dispute that the
photographic reproductions of signage at the Pool placed before me do

S
T
U

A
B
C

not show any signage with red background, white text.

69.

Further, in Disclosed Section 6, Mr MacGregor has

observed that [lifeguards] witnessed users running and took no remedial

B
C
D

action. Again, I am unable to see how the behaviour of other lifeguards

E
F

on duty at the Other Pools in September 2000 (even if such matter were
canvassed in Undisclosed Section 6) is relevant to the reactions of

E
F

lifeguards on duty at the Pool at the time of the Accident in October

G
H

2005. In my view, in the absence of pleadings particularly raising such

issue, the likelihood of evidentially material information in this respect

G
H

being elicited from Undisclosed Section 6 is remote.

I
J

70.

Still further, even if the depth or shallowness of the Pool is

an issue between the parties, I note that Mr MacGregor has not criticised
K
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the shallowness of the Pool in Disclosed Section 6, so little purpose is

served by the comparison exercise proposed by the Plaintiff in paragraph

K
L

51(a) above. In any event, the appropriate expert(s) on liability should

M
N
O
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be able to give opinion on the alleged shallowness of the Pool as against

any applicable standards which must be known to them.
71.

On the above analysis, I disallow the request for specific

discovery of Document A save and except for the particular entry in

M
N
O
P

Undisclosed Section 6 being the previous item as referred to in

Q
R
S

Disclosed Section 6 insofar as it relates to signage colour (but not of

other matters).
VII. DOCUMENT B

T
U

Q
R
S
T

72.

The Plaintiff seeks specific discovery of the document to

A
B
C

which the RSD Report is annex 2.

On 5 October 2010 (ie before

issuance of the Summons), DOJ sent a black and white copy of the RSD
Report to the Plaintiffs solicitors. By their letter dated 1 December 2010
(ie after issuance of the Summons), DOJ explained to the Plaintiffs

B
C
D

solicitors that the RSD Report itself is annex 2 to a memorandum of the

E
F

Provisional Regional Council (Council), and annex 1 to such

memorandum is a summary (and indeed a part) of the RSD Report. Such

E
F

memorandum, annex 1 thereto and a colour copy of the RSD Report

G
H
I

were enclosed with the letter. In such circumstances, I make no order in

respect of the request for specific discovery of Document B.
VIII. NEW DOCUMENTS C AND D

H
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73.
K

The Plaintiff claims the Defendant has not made discovery

of the following documents:

(a)

documents that have come into existence between February

K
L

1998 and 27 October 2005 as to promotion of swimming

M

safety referred to in paragraph 10 of Ms Chans affirmation

and adopted in Mr Chans affirmation whether specific to

M
N

the Pool or of general application to public swimming pools

O

(including the Pool), ie the Promotion Documents, and

paragraph 10 of Ms Chans affirmation states that the RSD

O
P

Report is comprehensive and covers a wide range of

Q

observations, remarks and recommendations, and its

working group, for example, examined promotion of

Q
R

swimming safety;
S
T
U

(b)

documents coming into existence between February 1998

and 27 October 2005 which are referred to (and by
implication identified by LCSD) as follow-up actions in

S
T
U

paragraph 11 of Ms Chans affirmation and adopted in Mr

Chans affirmation, ie the Follow-up Documents, and

paragraph 11 of Ms Chans affirmation states that insofar as

Yuen Long District Leisure Services Office (YL Office,

which
E

office

was

responsible

for

overseeing

C
D

the

administration and operation of the Complex) is concerned,

[she] verily believe that follow-up actions have been taken

E
F

at the [Complex/Pool] as a result of the RSD Report ;

G

(c)

documents coming into existence between 18 September

2000 and 27 October 2005 as a result of the MacGregor

G
H

Report having specific or general relevance to the Pool but

I

being restricted to those documents presently identified and

known to LCSD and/or DOJ as referred to in the

I
J

affirmations of Ms Chan and Mr Chan (ie the New

K

Document D).

K
L

(a) Defendants case

M
N

74.

In respect of New Document C, Ms Chan points out that the

RSD Report was commissioned by the RSD on request of the former

M
N

Council. Both the RSD and Council were dissolved in 1999 and their
O
P

functions were transferred to, amongst others, the LCSD, the Food and
Environmental Hygiene Department and their respective directors. The

O
P

RSD Report is a comprehensive report that covers a wide range of

Q
R

observations, remarks and recommendations, including study and

inspection of the design and safety of jumping blocks in main pools

Q
R

(pools designed for competition purpose) and training pools, steps in the
S
T
U

pools, and play equipment such as water slides and water guns. The
Working Group has also, for example, examined the system of facilities
inspection in pools, the methodology in calculating the maximum

S
T
U

A
B
C

capacity of the pools, and promotion of swimming safety.

75.

Given the long history and wide scope of the RSD Report as

well as the dissolution of the RSD and Council, Ms Chan and Mr Chan

B
C
D

are not certain how many documents have come into being as a result of
E
F

the RSD Report and are now still in the possession of LCSD or the
government at large in respect of promotion of swimming safety over

E
F

the relevant years. Further, Ms Chan cannot be sure how all documents
G
H

relating to the promotion of swimming safety in respect of the

Complex/Pool and/or Other Pools that have come into being as a result

G
H

of the RSD Report (in contra-distinction to only some documents with

I

more concise description or classification) can be located.

76.
K
L

Mr Law further submits that for the Promotion Documents,

since section 6 of the RSD Report which concerns promotion of

swimming safety is irrelevant to the present action, any document

K
L

coming into being as a result of that section is also irrelevant. He argues

M
N

that in respect of the Follow-up Documents, a request for documents

relating to follow-up actions as a result of the RSD Report is no

M
N

different from a request for Document C, and the Defendant objects to

O
P
Q
R

disclosure of such class of documents on the ground that it necessarily

contains irrelevant documents.
77.

In respect of New Document D, Ms Chan and Mr Chan

explain that the MacGregor Report is likewise a large-scale review of the

O
P
Q
R

safety of public swimming pools and covers, amongst others, issues like
S
T
U

human resources, play equipment, age limitation for different sexes in

changing room, documentation control and protective clothing in plant
room etc. Insofar as LCSDs headquarters and the YL Office are

S
T
U

A
B
C

concerned, [Ms Chan] verily believe that follow-up actions had been
taken at [the Complex/Pool] as a result of the RSD Report. But Ms
Chan and Mr Chan are not certain how many documents have come into
being as a result of the MacGregor Report and are now still in the

B
C
D

possession of LCSD or the government at large. The LCSD Memo

E
F

(which mentions a number of follow-up actions) found in the records of

LCSDs headquarters had been passed to the YL Office and eventually

E
F

disclosed to the Plaintiffs solicitors. But Ms Chan and Mr Chan cannot

G
H

be sure how all documents relating to the Complex/Pool that have come
into being as a result of the MacGregor Report (in contra-distinction to

G
H

only some documents with more concise description or classification)

I

can be located.

78.
K
L
M
N

Mr Law further argues that the disclosure of New

Documents C and D are not necessary at this stage of the proceedings

when the precise basis of the Plaintiffs claim has not yet been pleaded.

L
M

(b) Plaintiffs case

79.

In respect of New Document C, Mr Millar claims that since

section 6 of the RSD Report concerns promotion of swimming safety,

O
P

the Defendant cannot argue that documents coming into existence

pursuant thereto are other than relevant.

As regards the Follow-up

O
P

Documents, Mr Millar complains that Ms Chan is silent on what followQ

R

up actions have been actually undertaken or what documents have come

into existence that concern the Pool either generally or specifically as to

Q
R

safety.
S
T
U

80.

In respect of New Document D, the Plaintiffs solicitors in

their letter to DOJ dated 29 December 2010 complained that Ms Chan

T
U

A
B
C

has failed to state in her affirmation (when she should have done so)
what attempts (if any) have been made by the LCSD or the government
to identify what documents have come into existence as a result of the
MacGregor Report whether (a) specific to the Pool, (b) generally, and/or

B
C
D

(c) specific to public swimming pools concerning safety aspects and/or

E

depth.

(c) Discussion
G
H
I
J

81.

I agree with Mr Law that the scope of New Documents C

and D are very wide and would certainly cover irrelevant materials.
82.

To properly consider the Promotion Documents, one needs

to revisit what is covered by section 6 of the RSD Report on promotion

G
H
I
J

of swimming safety, which provides as follows:

K
L

6.
6.1

M
N
O

6.2
P
Q
R

6.3
6.4

S
T
U

6.5

(
)

L
M
N
O
P
Q
R
S
T
U

83.

It is plain from the above that in section 6 of the RSD

Report the Working Party proposed to increase educational efforts to

heighten public awareness of swimming safety following (a) drowning

C
D

incidents involving children which incidents were not unconnected with

E
F

insufficient parental care and attention, and (b) swimming incidents

arising from swimmers ignoring the inherent dangers of snorkelling. To

E
F

this end, the Working Party also proposed to increase the frequency of
G
H

poolside broadcasts on swimming safety in different languages, put up

notices/posters on swimming safety at public swimming pools, continue

G
H

with television/radio broadcasts on swimming safety, organise activities

I
J

on swimming safety with relevant bodies and government departments,

and invite public participation in an ambassador for swimming safety

I
J

scheme to promote swimming safety.

K
L

84.

The aforesaid general initiatives on education and

promotion of swimming safety cover a wide range of matters (other than

M
N

the alleged risk of diving into a shallow-water swimming pool), and are
targeted to reduce swimming incidents unrelated to the circumstances of

M
N

the Accident.
O
P

85.

In my view, given the observations/recommendations on

promotion of swimming safety in section 6 of the RSD Report, which

Q
R

are not focused merely on the alleged ills that may relate to the nature
and circumstances of the Accident, a request for specific discovery of the

Q
R

Promotion Documents premised on the such wide-ranging matters

S
T
U

created over a period of about 7 years from the date of the RSD Report
to the date of the Accident should not be allowed. In light of the broad
range of matters canvassed in section 6 of the RSD Report, I am

S
T
U

A
B
C

persuaded many documents falling within the class of documents under

Promotion Documents would fail to have any evidential materiality to
the Plaintiffs claim, and the Defendant is not permitted to seek
discovery with a view to hunt around for anything that may be useful.

B
C
D

I refer to the principles in paragraphs 38-40 above which make clear that
E
F

the class of documents sought must not be defined or described so

widely as to include documents which are not relevant to the matters in

E
F

issue.
G
H

86.

As regards the Follow-up Documents, Ms Chan in her

affirmation admittedly refers to follow-up actions having been taken as a

I
J

result of the RSD Report. Mr Millar claims that DOJs position is

tantamount to saying Ms Chan can state in her affirmation her belief that

I
J

follow-up actions on the RSD Report have been taken without any basis
K
L

or any stated basis for such belief. He suggests that insofar as reliance is
placed on documents for Ms Chans belief, that should be made clear in

K
L

her affirmation and discovery made in respect of such documents

M

whether it be now or at formal discovery.

87.
O
P

It should be remembered that Ms Chans affirmation was

filed before the Plaintiffs reformulation of his specific discovery request

from Document C to New Document C. Such affirmation was therefore

O
P

made in response to the request for all documents coming into existence
Q
R

between February 1998 and 27 October 2005 (or to now) as a result of

the RSD Report insofar as they have specific or general reference to the

Q
R

Pool. I am unable to appreciate why Ms Chan has to depose in her

S
T
U

affirmation in opposition all follow-up actions taken pursuant to the RSD

Report and all documents created as a result of such follow-up actions
when the Defendant contends that such information and documents are

S
T
U

A
B

irrelevant and unnecessary and when such contention is yet to be

determined by the court.

B
C

88.

In any event, the RSD Report does not just deal with

promotion of swimming safety but a wide range of matters (see

E
F

paragraph 74 above). They include observations/recommendations on

play equipment, water slides, areas offering shade, jumping blocks, staff

E
F

structure for pool management, beach safety, inspection of pool

G
H

equipment, roster for lifeguards, methodology for calculating pool

capacity, etc. There is no suggestion that any of these matters are related

G
H

to the nature and circumstances of the Accident. In my view, the broad

I
J

request for specific discovery of documents on follow-up actions to

the RSD Report for a period of 7 years from the date of the RSD

I
J

Report to the date of the Accident is both oppressive and unnecessary,

K
L
M
N

and it also falls foul of the principles explained in paragraphs 38-40

above.
89.

K
L

As regards New Document D, Mr Millar has restricted the

Plaintiffs request to documents that have come into existence between

M
N

the date of the MacGregor Report and the date of the Accident as a result
O
P

of the MacGregor Report that are presently identified and known to

LCSD and/or DOJ as referred to in the affirmations of Ms Chan and Mr

O
P

Chan. However, having carefully considered their affirmations, I cannot

Q
R

find any reference therein to documents identified and known to LCSD

and/or DOJ as a result of the MacGregor Report. Apart from the LCSD

Q
R

Memo (which has been disclosed), Ms Chan and Mr Chan clearly state
S
T
U

they are not certain how many documents have come into being as a
result of the MacGregor Report and are now still in the possession of
LCSD or the government at large and they cannot be sure how all

S
T
U

A
B
C

documents relating to the Complex/Pool that have came into being as a

result of the MacGregor Report can be located. In short, they have not
identified any document known to LCSD and/or DOJ other than the
LCSD Memo. The Plaintiffs solicitors acknowledged this in their letter

B
C
D

to DOJ dated 29 December 2010 when they complained that Ms Chan

E
F

has failed to state in her affirmation what attempts (if any) have been
made by the LCSD or the government to identify what documents have

E
F

come into existence as a result of the MacGregor Report (see paragraph

G

80 above).

90.
I
J

In such circumstances, the request for specific discovery of

New Document D fails for uncertainty. Even if I am wrong and the

affirmations of Ms Chan and Mr Chan do refer to documents that have

I
J

come into existence as a result of the MacGregor Report in the 5 years

K
L

between the date of such report and the date of the Accident, the scope of
such class of documents is plainly too wide as it covers matters
extraneous to the nature and circumstances of the Accident.

M
N

K
L

The

observations/ recommendations in part 5 of the RSD Report cover may

different topics, such as reorganisation/improvement of staff structure,

M
N

establishment of user group, review of age limitation for different sexes

O
P

in changing rooms, documentation control and accident reports for risk

assessment, securing of pool mats, storage space for cleaning materials,

O
P

access for wheelchair users, review of lifeguard safety equipment, policy

Q
R

review for allowing people who need artificial aids to be lifeguards, etc.
The LCSD Memo being feedback to the MacGregor Report covers

Q
R

matters ranging from signage colour and lifeguard briefing to artificial

S
T
U

turf, water slides, stone pillars/pool design, CCTV system, plant room
safety etc. Mr Law asks rhetorically why the Defendant should be called
upon to disclose documents that have come into existence following Mr

S
T
U

A
B
C

MacGregors recommendations over plant room safety and other matters

unrelated to injury by diving into a swimming pool. In my view, many
of the documents falling into this class would fail to have any evidential
materiality to the matters in issue, and the request is in my view no more

B
C
D

than a fishing exercise.

E
F

91.

Mr Millar submits that it is incumbent upon the Defendant

to be realistic and apply common sense in making discovery. In my

G
H

view, it is the duty of the Plaintiff being the applicant for specific
discovery to be concise. If the class is too wide (as in the application for

G
H

specific discovery of New Documents C and D), it will be oppressive for

I
J

the party ordered to make discovery to ascertain the exact number of

documents created, and the deponent for the disclosing party will find

I
J

himself in serious trouble for swearing a false affidavit even though he

K
L

has tried his best to give an honest disclosure. In the circumstances, I

dismiss the Plaintiffs requests for specific discovery of Documents C

K
L

and D as well as New Documents C and D.

M
N
O
P

IX. DOCUMENT E
92.

The LCSD Memo states that signage colour at the Pool

would be amended when it was finalised by the department (which

N
O
P

relates back to the observations concerning the Pool in section 6 of the

Q
R

MacGregor Report). It is therefore implicit that as at the date of the

LCSD Memo (ie 31 October 2000) the colour of the signage at the Pool

Q
R

was yet to be finalised.

S
T
U

93.

Mr Millar submits that without voluntary discovery of

documents identifying the finalised signage colour at the Pool pursuant

T
U

A
B
C

to the LCSD Memo or of documents evidencing further steps taken

concerning the colour or otherwise in respect of signage at the Pool, the
Plaintiff has to seek specific discovery of all documents coming into
existence as a result of change of signage at the Pool (a) from September

B
C
D

2000 to October 2005 or to now (see the Summons) and (b) from 27
E
F
G
H

October 2005 to 14 October 2009 or to now (see Mr Millars 1 st

affidavit).
94.

E
F

Ms Chan accepts that the LCSD Memo was issued as

feedback to the MacGregor Report and believes that amendment of the

G
H

signage colour was made as a result of recommendations in the

I
J

Macgregor Report.

Section 11 alludes to the signage colours at

swimming pools suggested by the Society for different types of

I
J

information, which include red background and white text for signage
K
L
M
N

containing prohibitory information and yellow background and black

text for signage containing warning information.
95.

By their letter dated 8 November 2010 to the Plaintiffs

solicitors, DOJ advised that they were collating more information

K
L
M
N

pertaining to such amendment [of colour signage at the Pool] and will
O
P

revert in due course.

Subsequently, Ms Chan in her affirmation

confirms she has personally inspected the correspondence between the

O
P

Complex and Architectural Services Department about maintenance of

Q
R

the Pool for the period from 2000 to 2005, and with the assistance of her
colleague she has located the following documents exhibited to her

Q
R

affirmation:
S
T
U

(a)

photographs taken at the Pool before 2000 (ie before the

dissolution of the RSD) depicting signage with white
background, blue text and red/blue pictograms;

S
T
U

(b)

several documents created in May to July 2001 evidencing

procurement of signage with inter alia yellow background
and black text, which procurement is likely to be follow-up

action pursuant to the LCSD Memo;

(c)
E

C
D

a few photographs taken at the Pool on 4 September 2002

and 3 April 2003 respectively showing signage with yellow
background and black/red text/pictograms that were in use

E
F

as early as in 2002 and 2003;

G

(d)

a few photographs taken at the Pool in or about November

2005 showing signage of inter alia no running, no

G
H

diving and deepest water depth with yellow background

I

and black/red text/pictograms as well as ground tiles with a

water depth mark for 1.1m.

J
K
L

96.

Ms Chan accepts that the documents in paragraph 95(b)-(c)

above are within Document E and may be relevant to the issues in

I
J
K
L

dispute in the Summons and/or in the present proceedings. She further

M
N

says that although the documents in paragraph 95(a) and (d) above have
not come into being as a result of change of signage to fall within

M
N

Document E, they are useful to the court in dealing with the Summons
O

and the present proceedings generally.

97.
Q
R

Photographic reproductions of various signage at different

times have been made available in the Affidavits as follows:

(a)

The signage shown in photographs in the 1998 RSD Report

Q
R

although not specific to the Pool appears to have the same

S
T
U

colours (ie white background, blue text and red/blue

pictograms) as shown in the reproductions of photographs
taken prior to 2000 as exhibited to Ms Chans affirmation.

S
T
U

(b)

There are no photographs of signage in the MacGregor

Report of September 2000.

(c)

The signage at the Pool shown in reproductions of

photographs taken in 2002 and 2003 as exhibited to Ms

B
C
D

Chans affirmation has yellow background and black/red

E

text/pictograms.
(d)

The signage at the Pool shown in reproductions of

E
F

photographs taken around November 2005 as exhibited to

G

Ms Chans affirmation has either (i) yellow background and

black/red text/pictograms or (ii) white background, blue text

G
H

and red/blue pictograms, but it appears that warning signs

I

have the colours in (i) above.

(e)

Wall-mounted signage at the Pool shown in reproductions of

I
J

photographs taken during Mr Millars site inspection in

K

October 2009 exhibited to his 2nd affidavit has either (i)

yellow background, black/red text and multi-colour

K
L

pictograms or (ii) blue background, black text and

M

red/white/blue pictograms, but it appears that warning signs

have the colours in (i) above.

N
O
P

N
O

(a) Plaintiffs case

98.

The Signage Protocols in Section 11 specify that diving

should be prohibited in splash pools: [pictorial] No Diving signs

Q
R

should be displayed at change room exit points and adjacent to open

pools. A total ban should be in operation, in any case, where depths are
less than 1.5 metres.

S
T
U

Q
R

Mr Millar submits that although there is no

definition of a splash pool in the MacGregor Report, the aforesaid

guidance is relevant because the Pool has a maximum depth of 1.1m, so
there should have been unambiguous No Diving prohibitory signage

S
T
U

A
B
C

with red background and white text at the Pool at the time of the
Accident.

But, as seen in paragraphs 95 and 97 above and as

acknowledged by Mr Law, the photographic reproductions of signage

placed before me do not show any with such colours at the Pool. Mr

B
C
D

Millar argues that in such circumstances, there should be specific

E
F
G
H

discovery of the underlying documents showing what signage was

applicable up to the time of the Accident.
99.

Mr Millar further submits that the layout and colour of

signage at the Pool in November 2005 and October 2009 were different,

E
F
G
H

which suggests that either Mr Macgregors observations as to signage

I
J

colour at the Pool had not been acted upon prior to the Accident or if it
had been acted upon there were further changes to signage colour

I
J

subsequent to the Accident. In any event, the signage at the Pool does
K
L

not accord with the recommended colours in Section 11, so documents

going as to the colour, size and layout of signs and any changes thereto,

K
L

is clearly relevant as one issue, clear from the correspondence, will be

M

the nature and extent of warning signs.

100.
O
P

Mr Millar says that the documents in paragraph 95(b) above

merely evidence procurement of signs (with unidentified wording), and

it is unclear whether all such procurement have been proceeded with

O
P

and/or whether such signs even if procured in 2001 have been installed
Q

at the Pool at the time of the Accident.

Q
R

(b) Defendants case

S
T
U

101.

Mr Law submits that the administration of the Complex

have taken steps to follow up on Mr McGregors opinion, and the

photographs and procurement documents exhibited to Ms Chans

S
T
U

A
B
C

affirmation (see paragraph 95 above) further demonstrate the change of

signage colour at the Pool subsequent to the MacGregor Report. But
what concerns the Plaintiff in the present case is the condition of the
Pool at the time of the Accident on 27 October 2005, and it is not useful

B
C
D

to dwell on any problem (if any) of signage at the Pool as at September

E
F

2000 or whether such signage was replaced between September 2000

and the time of the Accident or whether there has been any change of

E
F

signage after the Accident in October 2005. Mr Law argues that the
G
H

changes (if any) do not assist the Plaintiff in his claim in that it is
irrelevant, and hence the disclosure sought is not necessary at this stage

G
H

of the proceedings when the basis of the Plaintiffs claim has not yet
I

been pleaded.

I
J

(c) Discussion
K
L

102.

Mr Millar makes much play of the recommendation in

Section 11 that there should be absolute prohibition of diving in splash

K
L

pools. Such recommendation is given in the context of the Signage

M
N

Protocols for water slide safety which refers to a splashdown area where
the water slide exit point discharges into the main pool area, and I am not

M
N

persuaded that such recommendation is necessarily relevant to the nature

O
P
Q
R

and circumstances of the Accident since there is no suggestion before me

that the Plaintiff dived into any water slide splashdown area of the Pool.
103.

But even if I am wrong, it is plain that the Plaintiffs request

for specific discovery of Document E is essentially an attempt to trace

O
P
Q
R

the signage development (especially in relation to the colour of such

S
T
U

signage) from the McGregor Report to the Accident and thereafter until
now. In my view, the scope of this class of documents is too wide and
lacks evidential materiality for this stage of the proceedings.

S
T
U

104.

The Plaintiff is already in possession of documentary

evidence of the Signage Protocols on signage information in Section 11

and of signage at the Pool as at 2002/2003, 2005 and 2009 which are not

C
D

on red background with white text. At this stage of the proceedings

E
F

when (as Mr Millar submits) the Plaintiff is concerned with

commissioning expert opinion on liability and pleading his claim, even

E
F

assuming that the nature and colour of signage giving prohibitory or

G
H

warning information is relevant, I cannot see how tracing the history of

signage changes at the Pool from 2000 to 2005 will assist him. Mr

G
H

Millar has not identified how (beyond the specific assessment of whether
I
J

the signage at the Pool at the time of the Accident when viewed against
applicable guidelines (if any)) finding out whether the Defendant has

I
J

failed to act on Mr MacGregors observations on signage colour or has

K
L

acted on such observations but made subsequent changes is relevant or

necessary in the sense of being evidentially material to the issue as to

K
L

whether the Defendant has discharged its duty of care (if any) to the
M

Plaintiff as a user of the Pool.

105.
O
P

In considering the issue of liability, it also appears irrelevant

and unnecessary to assess how the successor(s) to signage at the Pool

after the Accident functioned. As explained in Charlesworth & Percy on

O
P

Negligence 12th ed para.7-49 at p.479,

Q

[either] subsequent experience or hindsight may show that

some additional precaution was necessary but this fact itself
would not prove that the defendants were guilty of negligence
at the relevant date of the accident. Whilst it is always easy to
be wise after the event, there is nothing which is so perfect that
it cannot be improved by knowledge, experience and
understanding.

R
S
T
U

Q
R
S
T

106.

The Plaintiffs solicitors further complain by way of their

A
B
C

letter dated 2 December 2010 to DOJ that Ms Chan has failed to state the
contents of and/or to exhibit to her affirmation the correspondence
between the Complex and Architectural Services Department about
maintenance of the Pool for the period from 2000 to 2005 that she

B
C
D

personally inspected. Mr Millar also argues that since Ms Chan has

E
F

acknowledged that at least some of the documents within Document E

are relevant, such class of documents should be disclosed.

These

E
F

contentions fly against the principles set out in paragraphs 38-40 above,
G
H
I

and are tantamount to a fishing exercise. In all the circumstances, I

reject the application for specific discovery of Document E.
X. DOCUMENT F

H
I
J

107.
K

Although the MacGregor Report finds the training

schedules and qualifications for lifeguards to be satisfactory, paragraph

5.4 thereof recommends they should be trained to take a more proactive

K
L

approach to poolside safety; several instances were noted when they

M
N

failed to take action over a safety critical event. In Disclosed Section 6,

Mr Macgregor makes a site-specific comment concerning the Pool that

M
N

[lifeguards] witnessed users running and took no remedial action. The

O
P

LCSD Memo (which is a feedback to the MacGregor Report concerning

the Pool) states that lifeguards have been briefed to take appropriate

O
P

action to stop runners.

Q
R

108.

Mr Millar notes there has been no discovery of the briefings

referred to in the LCSD Memo or subsequent briefings to lifeguards. He

S
T
U

points out that the partial reproduction of the VCD recording

immediately before and after the Accident made available to the
Plaintiffs solicitors shows that the Plaintiffs companions ran and

S
T
U

A
B
C

jumped into the Pool shortly before the Plaintiff dived into the Pool and
suffered the Accident, but the lifeguards present did not react to such
behaviour.

Mr Millar submits that the briefings to the lifeguards

(particularly as to running/jumping/diving) and their nature, extent and

B
C
D

frequency are clearly relevant to a likely issue in the action and are
E
F

required to enable the Plaintiffs claim to be properly pleaded. Hence,

the Plaintiff seeks specific discovery of Document F being all documents

E
F

coming into existence between September 2000 and October 2005 (or
G

now) as a result of briefings to lifeguards at the Pool.

109.
I
J

Ms Chan in her affirmation claims that briefings to

lifeguards at the Pool were/are done verbally by Amenities Assistant

(Pool) and they do not have a practice of creating documents (eg

I
J

minutes) as a result of such briefings given pursuant to operation

K
L
M
N

guidelines and/or notices issued by LCSDs headquarters from time to

time.
110.

K
L

Mr Millar accepts that at this stage the Plaintiff cannot go

behind Ms Chans assertion made on affirmation, but argues in his

M
N

written submissions that written guidelines relating to the oral briefings

O
P

to lifeguards and documents evidencing the lifeguards adherence to such

briefings are clearly relevant to a likely issue in this action and necessary

O
P

to enable the Plaintiff to properly plead his claim. He appears to be

Q
R

under the impression that the guidelines and/or notices issued by LCSDs
headquarters from time to time pursuant to which oral briefings are given

Q
R

to lifeguards are within the scope of Document F. He eventually

S
T
U

acknowledged in his submissions in reply before me that these

documents are not a result of briefings to lifeguards at the Pool, so he
made the Reformulation Application to seek specific discovery of New

S
T
U

A
B
C

Document F (ie all documents including operational guidelines and

briefings that came into existence between September 2000 and October
2005 as to guidance or briefing given to lifeguards at the Complex/Pool
concerning their duties on enforcing rules and regulations on safety at

B
C
D

the Complex/Pool) in substitution of Document F.

E
F

111.

Mr Law resists the Reformulation Application on several

grounds, all of which I find to be persuasive. First, Document F and

G
H

New Document F are significantly different classes of documents. The

latter results from oral briefings to lifeguards, but the former is the

G
H

premise for such oral briefings are given. Secondly, the Reformulation
I
J

Application first raised during the Mr Millars submissions in reply (ie

after Mr Law addressed on the specific discovery request for Document

I
J

F) is undeniably late. Mr Law says he is unable to take proper

K
L

instructions and is therefore embarrassed by the late application.

However, Mr Law fairly concedes, even though he says the scope of

K
L

New Document F still is too wide, the Plaintiff is at liberty (if he sees fit)
M
N

to recast the request for the aforesaid guidelines and/or notices issued by
LCSDs headquarters from time to time in a concise fashion and to make

M
N

fresh request for discovery of such class of documents if the

O

Reformulation Application is dismissed.

112.
Q
R

As another factor against the exercise of discretion in favour

of the Reformulation Application, Mr Law submits (and I accept) that

New Document F as presently formulated is too widely cast for it covers

Q
R

operational guidelines and briefings for a period of 5 years from

S
T
U

September 2000 to October 2005 covering all matters relating to

lifeguards at the Complex/Pool concerning their duties on enforcing
rules and regulations on safety. Such guidance and briefing may, for

S
T
U

A
B
C

example, cover safety in using water slide and play equipment, use of
safety equipment, carrying of personal safety equipment on duty,
introduction of incentive/reward scheme for reducing pool incidents, etc
(see section 5.4 of the MacGregor Report), none of which is relevant to

B
C
D

the nature and circumstances of the Accident.

E
F

113.

Ms Chan in her affirmation accepts that upon advice by the

Defendants legal representatives some of, but definitely not all of, the
G
H

guidelines and/or notices issued by LCSDs headquarters from time to

time may have to be disclosed when the proceedings come to the stage

G
H

of automatic discovery after the issues of the action are defined in

I
J

pleadings. Nevertheless, not until service of pleadings, she will not

know which guideline or notice (which covers many different aspects of

I
J

lifeguards practice at swimming pools) will be relevant to the claim, and

K
L

a complete disclosure of all guidelines and/or notices that have been

issued by LCSD to lifeguards is unnecessary or at least unnecessary at

K
L

this stage of the proceedings.

M
N

114.

Mr Millar argues that insofar as Ms Chan concedes that

documents fall to be disclosed at the stage of automatic discovery but not

O
P

now, it will cause wastage of costs if deferred discovery leads to future

amendment of the Statement of Claim which as of now is yet to be

O
P

pleaded.
Q
R

115.

I agree with Mr Law that it is for the Plaintiff to define the

class of documents he requests and to establish the relevancy of such

S
T
U

class of documents to the matters in issue, and it is not for the Defendant
to second-guess what sort of documents are relevant at this pre-pleading
stage of the proceedings. The short answer to Mr Millars contention is

S
T
U

A
B
C

that Ms Chan has not conceded that any guideline and/or notice issued
by LCSDs headquarters from time to time will necessarily be the
subject of automatic discovery. Her affirmation simply recognises that
once the Plaintiff has properly pleaded his claim, the Defendant will be

B
C
D

able to ascertain whether any of such guidelines and/or notices is

E
F

relevant to the matters in issue, and if there are they may have to be
disclosed under automatic discovery. Since the present proceedings have

E
F

yet to reach the stage of pleadings, it is important to clearly define the

G
H

scope of the documents sought so that the deponent of the disclosing

party will not be put into an invidious position when swearing the

G
H

relevant affidavit under Order 24 rule 7 of the RHC and so that the
I
J

disclosing party will not be burdened with disclosing irrelevant and/or

unnecessary documents.

I therefore dismiss the Reformulation

I
J

Application.
K
L
M
N

XI. CONCLUSION
116.

The Plaintiffs solicitors in the Correspondence and Mr

Millar in his written submissions have sought disclosure of the legal

L
M
N

advice mentioned in the affirmations of Ms Chan and Mr Chan. The

O
P

Plaintiff has not taken out any summons for such purpose and I have
declined to deal with such matter. Out of abundance of caution, when I

O
P

refer to legal advice being mentioned in the affirmations of Ms Chan

Q
R

and Mr Chan, I form no view as to whether such legal advice has been
deployed and/or whether such mention is sufficient to justify the

Q
R

Plaintiffs request for disclosure.

S
T
U

117.

There is no reason why costs should not follow event, so the

Defendant should be entitled to costs of (a) the Plaintiffs application for

T
U

A
B

specific discovery of Documents C, D, E and F and New Documents C

and D and (b) the Reformulation Application.

B
C

118.

The Plaintiff has achieved minor success in respect of the

request for specific discovery of Document A, but has failed in respect of

E
F
G
H

the bulk of the class of documents sought. There is no reason why costs
should not follow the respective events.
119.

Document B, I am of the view that the appropriate order is no order as to

costs.

I
J

In respect of the application for specific discovery of

E
F
G
H

The Defendant cannot be faulted for not disclosing the

memorandum and annex 1 thereto at this stage of the proceedings. I do

not see the relevance of the memorandum that requires voluntary

I
J

disclosure on the part of the Defendant at this stage of the proceedings.

K
L

Further, annex 1 is part of the RSOD Report that has already been
disclosed before issuance of the Summons. But at the same time, it is

K
L

unsurprising that the notation of annex 2 on the RSD Report arouses

M
N

the curiosity of the Plaintiffs solicitors. Given my directions of 11

November 2010 requiring the Plaintiff to issue the Summons for specific

M
N

discovery (see paragraph 15 above), the inclusion of a request for

O
P
Q
R

Document B without any prior request is understandable. In my view, a

fair order will be no order as to costs.
120.

Taking all of the above matters into consideration and

bearing in mind that the Defendant is entitled to a substantial portion of

O
P
Q
R

the costs of the Summons and the Plaintiff is entitled to a smaller portion
S
T

of such costs with an added element of no order as to costs in relation to

Document B, I am of the view that after netting off the various

S
T

entitlements, a fair order will be for the Plaintiff do pay to the Defendant
U

A
B
C

two-thirds of the costs of Summons including all costs reserved to be

summarily assessed with the Plaintiffs own costs be taxed in accordance
with Legal Aid Regulations, and I make a costs order nisi to such effect.

B
C
D

121.
E
F

Mr Law asks for certificate for counsel so that the

Defendant will recover cost on the basis of him acting as notional

counsel and his colleague as notional instructing solicitor. This raises an

E
F

interesting issue as to whether DOJ is entitled to seek costs in such

G
H

manner, but in the end it is not a matter that I need to resolve. I am not
persuaded that the application is of such complexity as to warrant

G
H

certificate for counsel.

I
J

122.

For summary assessment of the costs in paragraph 120

above, I grant further directions as follows :

K
L

(a) if no application is made to vary the costs order nisi within

14 days from today, the Defendant do within 21 days from

K
L

today lodge and serve statement of costs (not exceeding two

M
N

pages) pursuant to Practice Direction 14.3 and the Plaintiff

do within 7 days thereafter lodge and serve one-page

M
N

succinct summary of objections;

O
P

(b) the Defendant do within 14 days from today fix a date with
the Listing Clerk for summary assessment of costs to be

O
P

heard before me in chambers (open to the public) on a date

Q

not before 42 days from today with half hour reserved.

(Marlene Ng)

Master of the High Court

E
F

C
D
E

Representation:

Mr Nicholas Millar of Messrs Littlewoods for the Plaintiff.

G

Mr Lewis Law of the Department of Justice for the Defendant.

- 55 -

1st Schedule
B

1.
C

2.
E
F

3.
4.

5.

6.
7.

8.

9.
10.
11.

12.
L

13.
M
N

14.
15.

O
P

16.
17.

Q
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S
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U

designing, permitting or causing the Pool to be used with a depth or maximum

depth of only 1.1m, which was clearly of an inadequate depth or inadequate
maximum depth, so that a user jumping or diving into the Pool even at the deepest
point must be at risk;
failing to indicate or properly bring to a potential users attention the fact that the
Pool was a leisure pool and/or the shallowness of the depth of the Pool (which
was too shallow for diving or even swimming);
failing to post clearly marked and visible indicators of depth and/or changes of
depth of the Pool;
causing a slide to be fitted to the Pool with a depth of 1.1m and thereby
encouraging users to enter the Pool by that slide and, by implication, by means
other than using any steps provided;
failing to post any or any adequate or proper signs as to the risk of or warning
against jumping or diving into the Pool;
causing or permitting users to jump or dive into the Pool;
failing to take any or any effective steps to prevent users from jumping or diving
into the Pool;
failing to have or have any proper or effective regulations to prevent users from
jumping or diving to the Pool;
having an inadequate number of lifeguards on duty at the time;
having inadequate or improperly trained lifeguards on duty at the time;
the lifeguards present failing to take steps to enforce that the Pool was used for
leisure purpose;
the lifeguards present failing to monitor the situation and taking no or no effective
steps to enforce any regulations there might be against jumping or diving into the
Pool;
the lifeguards present failing to react to the Plaintiffs 2 companions entering into
the Pool by running across an area and jumping in before the Plaintiff dived into
the Pool;
the lifeguards present failing to prevent or deter the Plaintiff from diving into the
Pool or to direct him to enter the Pool by other means;
the lifeguards present failing to promptly react to the Accident and instead allow
the Plaintiffs companions to come to his aid in an inappropriate manner of
assistance;
the lifeguards present failing to enter the Pool for a considerable time after the
Plaintiff was injured;
upon the lifeguards present entering the water, doing so in an inappropriate
manner thereby causing further disturbance to the water which was likely to
impact adversely upon the Plaintiffs injuries.

A
B
C
D
E
F
G
H
I
J
K
L
M
N
O
P
Q
R
S
T
U

- 56 -

2nd Schedule
B
C

1.
2.
3.
4.
5.
6.
7.

8.
G

9.

10.

11.

12.
13.

14.

L
M
N
O
P
Q
R
S
T
U

15.
16.

CCTV recordings of the Pool area on the date of the Accident;

copies of all retained images from whichever CCTV camera from the Pool area in
relation to the Accident;
copy of any accident / incident book entry on 27 October 2005;
copy of any accident / investigation report in respect of the Accident;
copies of all records relating to the occurrence of the Accident;
copy of any other statement or record of interview with Mr Leung Kam Tai other
than his report prepared on 25 September 2009;
copies of all plans, drawings, sketches, memoranda, directions etc in respect of the
design and construction of the Pool;
copies or reference to the (international) standards pursuant to which the Pool was
designed and built;
copies of all documents evidencing formal risk awareness identification
undertaken for the Pool;
copies of all documents concerning risk assessment and/or audit and/or safety
reviews in respect of the Pool specifically or public swimming pools generally
(including the Pool);
copies of all records relating to the hiring or employment of lifeguards and the
nature and extent of their duties;
access to the accident / incident book held at the Pool since its opening to date;
copies of accident reports of all accidents / incidents that happened in the
swimming pools at the Complex;
copy records of all in-water incidents at LCSD administered / supervised
swimming pools in Hong Kong which have resulted in accidents to users;
copy records of all in-water incidents at LCSD administered / supervised
swimming pools in Hong Kong which have resulted in accidents to users as a
result of their diving or jumping into such pools;
copy records of all in-water incidents at LCSD administered / supervised
swimming pools in Hong Kong which have resulted in accidents to users
rendering them paraplegic or quadriplegic.

A
B
C
D
E
F
G
H
I
J
K
L
M
N
O
P
Q
R
S
T
U