L Travel Center Ltd v. To Sai Ho

DCCJ 3317/2015
DCCJ 3766/2015
(Consolidated)
and DCCJ 889/2019 (Heard Together)

[2020] HKDC 484

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3317 OF 2015 AND NO. 3766 OF 2015

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BETWEEN

(Actions consolidated by order of Registrar Lui dated 5 January 2017)

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AND

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 889 OF 2019

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BETWEEN

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JUDGMENT

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Introduction

1.Mr To was employed by L Travel Center Limited (“the Company”) as General Manager from 1 January 2011 to early November 2013.  The Company first commenced an action against Mr To under DCCJ 3317/2015 (“the First Action”) for an account of the remaining amounts of advance payments in the sum of HK$121,136.  Mr To then counterclaims for his outstanding salary from 1 October 2013 to 3 November 2013.

2.Mr To’s counterclaim was actually made prior to the First Action in the Labour Tribunal under LBTC3842/2013 in December 2013 (“the Labour Tribunal Claim”). It was transferred on 28 July 2015 to the District Court and registered as DCCJ 3766/2015 (“the Second Action”).

3.By the order of Registrar Lui dated 5 January 2017, the First Action and the Second Action were consolidated (collectively “the Consolidated Action”).

4.Subsequently, the Company instituted another set of proceedings in the High Court under HCA2676/2017 (“the High Court Action”) against Mr To for his alleged deletion of customer data from its computer before the termination of his employment and his alleged solicitation of its customers thereafter.

5.The High Court Action was transferred to the District Court and became DCCJ 889/2019 (“the Transferred Action”). This is the trial of both the Consolidated Action and the Transferred Action.

Essential background facts

6.The Company is a locally incorporated company carrying on business as a licensed travel agency in Hong Kong. Mr Leung and Madam Chan are husband and wife and the directors of the Company.

7.Mr To entered into a written employment contract dated 1 January 2011 with the Company as General Manager. He was responsible for, among other things, liaising with corporate clients and supervising travel consultants of the Company.

8.Prior to his employment, Mr To had had vast work experience in the travel agency business. At some stage, Mr To operated his own travel consultancy business under the name of Benny & Co.. On the other hand, the Company was only incorporated in May 2010 and neither directors of the Company had any previous relevant experience.

9.The Company had a small scale of operation and had 7 to 8 staff members at the material times. Emily Tang (“Tang”), Tracy Lau, Sonia Ip and Kan Wan were its travel consultants and they would sometimes act as tour escorts and travel with the tour groups. Tang’s title was Account Executive and she also undertook bookkeeping duties. Mr Leung’s daughter-in-law Tammy Tam helped out without a formal employment. At the material time, the Company provided each of the staff members with a desktop computer in its office.

Agreed Issues in Dispute

10.The parties have filed an “Agreed Combined Statement of Issue in Dispute”. It sets out the following 10 issues for my determination:

(1) Whether there were any Complimentary Arrangements for the corporate clients of the Company;

(2) whether the 4 sums received by Mr To were the Company’s money for the purpose of providing Complimentary Arrangements;

(3) whether the 4 sums received by Mr To were part of the fees provided by the customers and were drawn by Mr To for the purposes of tour expenses;

(4) whether Mr To was in breach of the employment contract and/or liable for conversion and if so, what the amount of damages is;

(5) whether the Company had by mistake paid to Mr To HK$30,000 salary notwithstanding his absence from work from 14 June to 15 June 2013;

(6) what, if any, the amount of unpaid salary, MPF and annual leave that the Company is owing to Mr To is;

(7) what the implied terms of the employment contract between the Company and Mr To were;

(8) whether Mr To had deleted customer information of the Company in its computer;

(9) whether Mr To had solicited the Company’s customers away from the Company; and

(10) whether Mr To was in breach of any of the implied terms of the employment contract and/or liable for trespasses to the Company’s computer and if so, what the amount of damages is.

11.In my view, the issues can be classified into three categories, viz, the Complimentary Arrangements Issue for the 1^st to 4^th issues above, the Outstanding Salary Issue for the 5^th to 6^th issues above and the Computer Issue for the remaining issues.

General Observations of the parties’ witnesses

12.It is apparent that all of the major issues in the present case are factual in nature. The credibility and reliability of the parties’ witnesses are of crucial importance.

13.The Company called two witnesses. Mr Leung was the main witness for all the Issues whereas Mr Chiu who is a computer expert engaged by the Company in February 2018 to recover deleted/damaged data from the computer of Mr To testified on the Computer Issue. The evidence of Mr Chiu is not in dispute and there is no question about his credibility.

14.Mr Leung did not take part in the day-to-day operation of the business of the Company. He said that he only went to the office of the Company twice a week and spent approximately two hours on each occasion to hold conferences. He had no personal knowledge of the material transactions though he was the only witness on these matters. He did not state in his witness statements his source of information which purportedly substantiates the complaints about Mr To either.

15.Mr Leung is in his early seventies and appeared to be clear thinking and articulate in the witness box. However, he did not strike me as a reliable witness. He paid scant regard to the pleaded case and the documentary evidence of the Company. He had little qualm about deviating from them.

16.On the other hand, Mr To was the only witness of the defence. His evidence is, to a large degree, supported by contemporaneous documents and he spoke with confidence. Despite the criticisms of Mr Wong, counsel for the Company, he is a far better witness than Mr Leung in my view and his evidence is preferable to Mr Leung’s evidence whenever they are in conflict.

17.Now I turn to the 4 Issues. 

The Complimentary Arrangements Issue

18.The pleaded case on the Complimentary Arrangements Issue is that on or about 28 February 2011, Mr To suggested to Mr Leung and Madam Chan that the Company should offer complimentary premium services including upgraded catering, massage and/or nightlife entertainments in order to attract more corporate clients.

19.It is further pleaded that Mr Leung and Madam Chan accepted the suggestion on or about 27 April 2011 at the office of the Company on the express conditions that Mr To would first give the Company an estimate of the costs of such Complimentary Arrangements and then would receive such amounts on trust for the Company during the tours. Mr To was accountable to the Company in respect of such amounts at the conclusion of such tours and he should produce receipts to the Company and any unused amounts should be refunded to the Company.

20.The core complaint is that Mr To was in breach of trust and certain implied terms of his employment contract in that he failed to account to the Company some amounts given to him for the purpose of the Complimentary Arrangements by the production of the relevant receipts. Mr Wong confirms that the crux is that Mr To misappropriated such monies and converted them into his use.

21.This complaint concerns the 4 sums given to Mr To by way of cheques for the purpose of 3 private tours. The first sum in the amount of HK$42,630 (“the First Sum”) was given by way of a cheque dated 8 January 2013. The second sum in the amount of HK$2,330 (“the Second Sum”) was given by way of a cheque dated 16 January 2013. The third sum in the amount of HK$41,320 (“the Third Sum”) was given by way of a cheque dated 26 April 2013. The fourth sum in the amount of HK$74,803 (“the Fourth Sum”) was given by way of a cheque dated 19 August 2013.

22.The 3 private tours involved 2 corporate clients. The First Sum and the Second Sum were related to the 4-day Pattaya tour from 15 January to 18 January 2103 (“the Pattaya Tour”) organised for KDK Shun Hing Electric Works & Engineering Co Ltd. (“Shun Hing”). The Third Sum was related to the 4-day Kunming tour from 6 May to 9 May 2013 (“the Kunming Tour”) organised for Pioneer (HK) Ltd. (“Pioneer”) and the Fourth Sum was related to the 5-day Bangkok/Pattaya tour from 2 September to 6 September 2013 (“the Thailand Tour”) organised for Shun Hing. Tracy Lau was the tour escort of the 3 Tours and travelled with the tour groups.

23.Mr To accepts that he did receive the 4 Sums from the Company. He denies that the Complimentary Arrangements ever existed and he was required to spend the 4 Sums for the same. His position is that the 4 Sums were duly spent for the enjoyment of the tour members of the 3 Tours and some of them were refunded to the tour members. He did not convert any part of them to his own use.

24.The Complimentary Arrangements Issue constitutes an indeed serious allegation against Mr To but it is not borne out by the evidence. In the first place, I do not believe that the Complimentary Arrangements existed on the balance of probabilities.

25.Under cross examination, Mr Leung indicated that the maximum profit margin of the Company in each tour was 8% and some tours even ran a deficit.  For each of the 4 Sums, Mr To issued an exchange order to apply for the release of the same to him with the assistance of Tang. Mr To was her superior and Tang did not have any question about the requested amounts. Upon receipt of the exchange orders, Tang prepared the cheques for the amounts requested for the signature of Madam Chan. Madam Chan knew little about the Tours and she simply signed the cheques to be given to Mr To.

26.In the circumstances, Mr To was solely responsible for the determination of the amount in each of the exchange orders. This hardly makes commercial sense and is inherently improbable. I do not believe that Mr To was given such a mandate. Mr Leung and Madam Chan should have kept an eye on such expenses to ensure that their business was commercially viable and the financial interest of the Company would not be jeopardised. They could not have allowed Mr To such a free hand in this matter.

27.Mr Sae Pang, counsel for Mr To, helpfully calculated the ratios of such amounts to the total tour fees of the Tours as evidenced by the relevant quotations. The First and Second Sums represented 20.7%, the Third Sum 32.2% and the Fourth Sum 27.9%. Even the Complimentary Arrangements were said to be promotional in nature, they should be reasonable and proportional. It is perplexing that Mr Leung said nothing about any ceiling on the cost of the Complimentary Arrangements.

28.For Shun Hing and Pioneer, Mr Leung accepted under cross-examination that Mr To brought them over from his former employer. Mr To had had a good business relationship with them and had dealt with them for years. If the avowed aim of the Complimentary Arrangements was to attract corporate clients, I do not see why they had to be provided to Shun Hing and Pioneer to procure their business. There is no evidence that these two corporate clients did not do business with the Company after Mr To joined the Company in 2011. There is no justification for the Company to offer the Complimentary Arrangements to them in 2013 so as to secure their business. In any event, the amounts allegedly expended for that purpose were unreasonable.

29.More importantly, the allegation of the Complimentary Arrangements suffers the heaviest blow by the evidence of Mr Leung. Under cross-examination, Mr Leung said more than once that the 4 Sums were merely given to Mr To as spare money to pay for any upgraded services during the Tours. The Company would issue invoices after the Tours to claim reimbursement from the clients. He stated clearly that such upgraded services were not intended to be free of charge. Mr Leung complained that without the receipts, the Company was unable to make such claims to Shun Hing and Pioneer. This is a fundamental change of the nature of the Sums and the complaints in the pleaded case on the Complimentary Arrangements Issues. Mr Leung even went on to assert that it may be a mistake made by Sonia Ip concerning the nature of the Complimentary Arrangements in the pleading. I do not understand why Sonia Ip was responsible for the contents of the pleading as it was Mr Leung who signed the Statement of Truth to verify the same.

30.It is, hence, clear that on Mr Leung’s own evidence, this claim relating to the Complimentary Arrangements Issues must be rejected.

31.On the other hand, I accept the evidence of Mr To in regard to the circumstances leading to the Company’s payment of the 4 Sums to him. Mr Leung gave no contrary evidence at all. The 4 Sums were actually advance payments given to Mr To for him as the expenditure of the Tours included in the tour fees. In other words, the tour fees paid by Shun Hing and Pioneer for the Tours did cover such expenses.

32.Mr To applied for the advance payment of the First Sum by the exchange order dated 7 January 2013 (“the First Exchange Order”). The First Exchange Order concerned the Pattaya Tour and it is shown that the First Sum was made up of a sum of HK$40,300 and another sum of HK$2,330. For the former, it represented meals refund of HK$1,300 per person and the latter represented single room refund to two persons who opted to occupy a double room instead of two single rooms. The Second Sum was also single room refund in the like amount and it was the subject matter of the exchange order dated 15 January 2013 (“the Second Exchange Order”).

33.For the Third Sum, Mr To applied for the same by another exchange order dated 26 April 2013 (“the Third Exchange Order”). The Second Sum consisted of a sum of HK$15,320 designated for golf expenses and a sum of HK$26,000 described as meals and entertainment expenses. For the former, an invoice issued by a local travel agency in Kunming known as Yunnan Overseas Travel Corporation dated 3 May 2013 evidenced such an expense.  For the latter, I accept the evidence of Mr To that it was for a luxurious Japanese Teppanyaki dinner which cost HK$2,000 per head. There were 13 persons in the tour group and so the total amount was HK$26,000. Mr To said that Tracy Lau obtained a receipt of the dinner from the restaurant when he was drunk. He did not produce the receipt to the Company because he found that it was not fit for accounting purpose for want of accuracy.

34.Lastly, Mr To applied for the Fourth Sum by an exchange order dated 15 August 2013 (“the Fourth Exchange Order”). It was for the meals of 34 people. Meals were expressly included in the tour fees as stated in the relevant quotation.

35.It was not stated in any one of the Exchange Orders that such expenses were borne by the Company as the Complimentary Arrangements. Quite on the contrary, their descriptions tally with the evidence of Mr To as to how they were incurred.

36.The pleaded case of the Company was further contradicted by its documentary evidence. The Company issued an invoice dated 10 May 2013 to Pioneer (“the Kunming Invoice”) after the completion of the Kunming Tour for a total sum of HK$26,153.60. It was for the reimbursement of miscellaneous expenses during the Kunming Tour itemized in the Kunming Invoice. Such expenses included massage, Karaoke, golf and food and beverages expenses. These expenses seemingly fell within the scope of complimentary services to be offered pursuant to the Complimentary Arrangements. However, contrary to the pleaded case of the Company, these services were not provided free of charge to Pioneer. 

37.On the same date, Mr To issued an exchange order to the Company for the like amount for reimbursement of the same expenses which Mr To paid out of his pocket in advance for the group during the Kunming Tour. By a cheque dated 20 May 2013, the Company duly reimbursed Mr To the said amount.

38.On 27 May 2013, the Company issued a receipt to Pioneer after its settlement of the Kunming Invoice. Thus, it is clear that these services were not complimentary.

39.All these documents tell a completely different story. Mr Leung has no answer to this at all.

40.Much time was spent on whether Mr To could produce receipts for certain expenses appearing in the Exchange Orders and detailed submissions were made on his failure to do so. Mr Wong confirms in his closing submissions that the entire case of the Company on the Complimentary Arrangements Issue is about the unlawful conversion of the Sums by Mr To and not his failure to produce the relevant receipts per se. It merely gives rise to an inference that those amounts were not spent for the benefit of the tour groups but were misappropriated by Mr To.

41.I accept Mr To’s evidence that those expenses itemized in the Exchange Orders including the expensive Japanese dinner were covered by the tour fees. There being no contrary evidence, I am unable to come to a different conclusion. After Shun Hing and Pioneer paid the deposits to the Company, the Company paid Mr To the Sums (except those single room and meal refunds) so that he could settle such expenses during the Tours. I accept his evidence that he did spend all the Sums for the tour groups. He might be unable to produce all the receipts but it is a quantum leap of logic to say that it is more likely than not such expenses had not been incurred and settled during the Tours.

42.If the Company wishes to prove the non-incurrence of such expenses in the Exchange Orders, direct evidence could and should be obtained from Shun Hing, Pioneer and Tracy Lau. The same can be said about the single-room refund too. No explanation has been given for its failure to procure their testimony.

43.Likewise, Tang, who handled the Exchange Orders, and Madam Chan, who signed the relevant cheques for the Sums, should be in a much better position than Mr Leung to explain the nature of the Sums. Mr Leung said Tang left the Company not long after the departure of Mr To but she is contactable and on good terms with the Company. The Company has not given any explanation as to why neither of them was called to be its witness.

44.For the reasons given, the pleaded case of the Company is not borne out by evidence and I rule against it on the Complimentary Arrangements Issues.

The Outstanding Salary Issue

45.It is common ground that the Company has not paid Mr To his salary from 1 October 2013 to 2 November 2013. His monthly salary was HK$30,000. In his counterclaim, Mr To claims the outstanding salary from 1 October 2013 to 3 November 2013 plus loss in MPF in the sum of HK$34,650. He further claims the balance of 2 days’ annual leave in the amount of HK$1,972.60.

46.After accepting that he actually gave a written 30-day notice to the Company of the termination of his employment on 3 October 2013, Mr To admits that he is entitled to his salary with MPF until 2 November 2013 only and a sum of HK$1,050 should be deducted from his claim.

47.The defence of the Company to this claim consists of a simple allegation that by mistake it paid Mr To full monthly salary in June and July 2013 despite his absence from work from 14 June 2013 to 15 July 2013 (“the Period”). It now seeks to set off the salary mistakenly paid for the Period against the outstanding salary.

48.Mr To gave a full explanation for his apparent absence during the Period. First, as evidenced by a medical certificate, he was admitted to Pok Oi Hospital due to his heart problem from 14 to 15 June 2013. He was granted 3 days’ sick leave until 16 June 2013. This is not disputed.

49.After his discharge from the hospital, Mr To alleged that Madam Chan told him to work from home. He did so but he also returned to the office from time to time. He resumed working in the office in or about early July 2013. On or about 9 July 2013, he fell onto the ground and injured his head. He was admitted to Tuen Mun Hospital and was hospitalized from 9 to 11 July 2013 as evidenced by another medical certificate. He was granted 3 days’ sick leave for his hospitalization too.

50.Mr To alleges that after his discharge, Madam Chan asked him to take a few days’ rest and so he only returned to the office on 16 July 2013.

51.Under cross-examination, Mr To clarified that what he said Madam Chan had told him was related to him through Tammy Tam.

52.I accept Mr To’s explanation and reject Mr Leung’s unsubstantiated case of mistake. It is remarkable that Madam Chan has never made any rebuttal of Mr To’s allegation.

53.Mr Wong submits that Mr To lied as he only disclosed that the permission to work from home was given through Tammy Tam and not directly by Madam Chan under cross-examination. I do not agree. I see no reason why Mr To felt the need to make the clarification if he was not telling the truth. Neither Madam Chan nor Tammy Tam came forward to testify and there could be no contrary evidence emanating from them in any event. Curiously enough, Mr Leung said nothing about the alleged permission in his evidence at all.

54.Moreover, there is documentary evidence that Mr To did work for the Company during the Period. There were emails exchanged between Mr To and his colleagues concerning the business of the Company during the Period. It is not disputed that Mr To did work from home.

55.Lastly, there is no explanation as to how the alleged mistake came about. There is no evidence that Mr To was ever questioned about his absence during the Period. The Company even raised no issue about the alleged unauthorized absence from work in its counterclaim in the Labour Tribunal filed on 23 December 2013. It was only raised in its Defence to Counterclaim filed in the First Action on 3 December 2015. I do not accept that it is a genuine complaint.

56.I, therefore, come to the conclusion that the Company has no defence to Mr To’s claim of his outstanding salary in the sum of HK$33,600 (including MPF) and annual leave in the sum of HK$1,972.60. There can be no set-off.

The Computer Issue

57.The pleaded case is that Mr To, at various times during his employment the Company, retrieved customer information from the computer given to him for his own benefit and/or interests so as to solicitor the customers of the Company during or after the termination of his employment.

58.After the termination of Mr To employment, the Company on or about 30 October 2013 discovered that information relating to 8 to 10 corporate clients of the Company (“the Corporate Clients”) had been completely erased from the computer which was used by Mr To.

59.About 2 to 3 weeks later, the Company managed to recover some of such deleted information. However, the business of the Company was still seriously disrupted because the Company had lost all the records of outstanding service fees due and payable to by the Corporate Clients and it was unable to contact and follow up with the Corporate Clients promptly. It further alleges that it was unable to notify the Corporate Clients that Mr To no longer worked with the Company.

60.The Company points out that after the termination of the employment of Mr To, the Corporate Clients ceased to engage the services of the Company. It reckons that the Company had lost their contact information or they had been solicited away from the Company. They may even have no idea who the contact person of the Company is.

61.The Company then claims against Mr To for a sum of HK$1,451,275.00 as damages for the loss and damage suffered by the Company as a result of the breach of certain implied terms of the employment contract and trespass to goods of the Company by Mr To.

62.This claim is an utter non-starter and has no evidential basis.

63.Mr Leung said that upon discovery of the deletion of data by Mr To, the Company first tried self-help measures with a recovery software. The recovered documents were attached to a statement dated 22 June 2015 made by the Company for the purpose of the Labour Tribunal Claim.

64.However, the recovered documents comprise only a promotional email sent to the Company by a local hotel on 31 October 2013 and two emails exchanged between the Company and two individual travelers dated 9 and 10 December 2013 (“the Emails”). 

65.These documents are plainly not related to the Corporate Clients and could not have been deleted by Mr To. The unchallenged evidence of Mr To is that he had not returned to the office of the Company since 5 October 2013.

66.In Mr Leung’s witness statement, it is asserted that the computer used by Mr To in the course of his employment had never been used since his departure and after the Company tried unsuccessfully to recover the deleted information in November 2013. The computer was seriously damaged and could not function properly. 

67.These allegations are demonstrably false in light of the Emails and the documents recovered by Mr Chiu. To start with, none of such documents contains the information of the Corporate Clients as contended by the Company. Nor could Mr Leung identify any such documents. 

68.More alarmingly, those documents show that the computer was indeed used by other staff members after Mr To left the Company. Kan Wan sent emails by the computer from November 2013 to January 2018 shortly before Mr Chiu worked on the computer.

69.Mr Chiu said that when he examined the computer, it was indeed severely damaged to the extent that the operating system could not be entered. The damage must have been caused to the computer at least after the creation of the last email by Kan Wan on 30 January 2018. Mr To could not have damaged the computer as alleged. It must be done by someone else who had access to the computer.

70.Mr Chiu could not tell when the deletion of the data of the computer took place. Some of the recovered documents only came into existence after Mr To left the Company. Mr To could not have had access to the computer and deleted those documents.

71.Kan Wan only left the Company early this year. His evidence would be relevant and helpful. However, no explanation has been given as to why he was not called to be a witness. The real picture has not been given to this court by the Company obviously.

72.In the premises, I reject the allegations of the Company and accept Mr To’s evidence that he had merely deleted his personal emails and not those documents alleged by the Company from the computer. This conclusion suffices to dispose of the Computer Issue.

73.I should make it clear that the Company’s allegation that due to the deletion of such documents, it lost the contact information of the Corporate Clients and thus lost their business is absurd. Mr Leung accepted that such information could be found in the accounting documents relating to their tours including various invoices and receipts. The Company is legally obliged to keep them for 7 years. Tang handled these documents and passed them to another company of Mr Leung known as Golden Field Glass Works Co. Ltd. to carry out the accounting job. There is no suggestion that Mr To could have ever destroyed such accounting documents.

74.Mr Leung accepted that the Company could still contact the Corporate Clients by the use of the information contained in the accounting documents. He explained that the Company was unable to solicit business from them anymore because it was not disclosed in such information who the directors or the persons-in-charge were. The absurdity of his explanation is writ large.

75.For completeness, I make it clear that I do not accept the allegation that Mr To had ever retrieved the information of the Corporate Clients from his computer during his employment with a view to solicitation of their business after his departure. This allegation is not supported by an iota of evidence. Further, this allegation ignores the undisputed fact that Shun Hing and Pioneer have had a long business relationship with Mr To. He could not have found it necessary to rely on any such information to continue to do business with them if he wished to do so.

76.Mr To stated that he did not carry on any travel agency business after he left the Company. His company has been used to carry on other trading business. There is no contrary evidence and I have no reason to disbelieve him.

77.Mr Leung added that his staff contacted some of the Corporate Clients and they told his staff that Mr To had approached them and asked them to do business with some other travel agencies. This is a glaring departure from the pleaded case and was only raised for the first time under cross-examination. I cannot accept his evidence.

78.The amount of the damages claimed is, on the other hand, completely baseless. I need say no more about it in view of my foregoing findings.

Conclusion and Disposition

79.For the reasons given above, I conclude that, even on evidence of Mr Leung, the Complimentary Arrangements did not exist. I accept that Mr To received the 4 Sums as advance payments for the purposes of tour expenses and he converted none of them to his own use. The Company’s claim based on the Complimentary Arrangements in the Consolidated Action falls to be dismissed.

80.I further conclude that the Company did not pay the full salary for June and July 2013 by mistake. Mr To was entitled to his salary for these two months. Mr To is entitled to his outstanding salary in the sum of HK$33,600 and annual leave in the sum of HK$1,972.60. There can be no set-off.  I allow his counterclaim in the Consolidated Action and enter judgment in his favour for these two sums. Interests on these two sums should start to accrue from 2 November 2013 to the date of this Judgment at 1% over prime and thereafter the judgment rate until full payment.

81.Lastly, I conclude that Mr To did not delete any information of the Corporate Clients from his computer. The computer was damaged only a few years after he left. Mr To has caused no damage to the Company.

82.Mr To did not do anything during his employment to solicit Corporate Clients away after the termination of his employment with the Company. The failure of the Company to continue to do business with them has nothing to do with Mr To. All the Company’s claims in the Transferred Action must be dismissed.

83.There is no reason why the general rule of costs following the event should not apply. I make an order nisi that costs of the Consolidated Action and the Transferred Action including any costs previously reserved be paid by the Company to Mr To, to be taxed if not agreed, with certificate for counsel.

84.I believe that an indemnity costs order is amply justified in the present case. The dispute started off as a simple and modest claim made by Mr To at the Labour Tribunal in December 2013. His claim was expected to be disposed of expeditiously there. The Company came back with a counterclaim alleging Mr To’s failure to return advance cash payments and commenced the First Action.  Piling more pressure on Mr To, the Company even made an unmeritorious claim on dubious evidence in the High Court.

85.I do not think that any of the claims of the Company are bona fide. Even Mr Leung showed no conviction in its pleaded case. The claims are oppressive in my view and were apparently made to stifle the Labour Tribunal Claim of Mr To and in retaliation for his complaint about the Company lodged with the ICAC.

86.Thus, I make an order that all costs payable by the Company to Mr To should be taxed on an indemnity basis.

87.Lastly, I thank Mr Wong and Mr Sae Pang for their assistance rendered to this court.

Mr. Joseph Wong, instructed by S. W. Wong & Associates, for the plaintiff

Mr. Jang Sae Pang, instructed by Gary Lau & Partners, for the defendant