Anz Commodity Trading Pty Ltd v. Excellence Raise Overseas Ltd and Others

HCCL 4/2017

[2019] HKCFI 2805

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL ACTION NO 4 OF 2017

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D E C I S I O N

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1.This is the Plaintiff’s (“ANZ”) applications for specific discovery against the 5^th and 6^th Defendants (“Ko” and “Siu”).

2.On 30 July 2019, this court made a specific discovery order (“Order”) against, inter alia, Ko in the absence of any valid ground of opposition.  The matter was not dealt with in respect of Siu on that day due to the stay of proceedings consequential upon his application for legal aid. Today, apart from dealing with the application against Siu, ANZ seeks a further order against Ko by reason of the alleged unsatisfactory compliance with the Order.

3.The issue before the court is quite narrow.  It appears from the evidence filed by Ko and Siu that there is a misunderstanding on their apart concerning their discovery obligations, namely, the misapprehension that there is a need for the authorisation of their ex-employers (the 2^nd and 3^rd Defendants)[1] before they can access or disclose information stored under email accounts in their names which were opened under the instructions of their ex-employers and used for the purposes of those employers.

4.The scope of discovery obligation is wide.  A litigant is under duty to disclose documents which are in his possession, custody or power.  I accept the view advanced on behalf of ANZ that in present day context access to electronic documents store in an email account would amount to possession or custody of such documents.  In this regard, whilst both Ko and Siu had said in their evidence that they had ceased using the email accounts in question and given the passwords thereto to their ex-employers at the termination of employment, they have not made clear whether they can still access the accounts, or whether they can gain access to the accounts by, eg, resetting the passwords.  It must be borne in mind that these email accounts are personal accounts opened by them.   

5.In the premises, I am unable to accept that Ko and Siu have properly discharged their discovery obligations. 

6.It can be understood that these discovery obligations are not easy to grapple with by unrepresented litigants.  On the other hand, these applications are important to ANZ who is seeking to recover a huge sum of money which it had lost as a victim of fraud. 

7.As regards the court’s discretion whether to order inspection of documents stored in the email accounts in question in the absence of authorisation of the 2^nd and 3^rd Defendants, I see no hindrance to granting relief in favour of ANZ.  The Order was made against, in addition to Ko, the 2^nd to 4^th Defendants.  So far, there has been no compliance by the 2^nd to 4^th Defendants. 

8.For these reasons, I make the two orders as per the drafts put before the court on behalf of ANZ with amendments.  I shall hear the parties on costs.

Mr Derek J Y Chan, instructed by Holman Fenwick Willan, for the Plaintiff

The 5^th Defendant appeared in person

The 6^th Defendant appeared in person

[1] Ko was employed by the 2^nd Defendant whilst Siu had worked for both the 2^nd and 3^rd Defendants.