X and Another v. Y

HCA 166/2023

[2023] HKCFI 2931

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 166 OF 2023

________________________

BETWEEN

________________________

________________________

REASONS FOR DECISION

________________________

1.On 3 February 2023, X obtained before K Yeung J upon an ex-parte application, in gist, (a) an injunction restraining Y from using, disseminating or disclosing to anyone the contents of, and the information referred to in, the Offending Emails (defined below) and the photos and documents attached to these emails, and (b) leave to commence this action with anonymity.

2.On 7 February 2023, X issued a summons (“the Summons”) to continue the said Order of K Yeung J, which has since been continued pending the determination of the Summons.

3.On 7 June 2023, the Master ordered by consent that the 2^nd Plaintiff (“P2”) be joined without being anonymized.

4.On 27 October 2023, the part of the Summons dealing with the continuation of the injunction was deposed of by ordering by consent the continuing of the same until trial or further order. The continuation of the anonymity order remains opposed by Y.

5.At the conclusion of the hearing, I ordered the continuation until further order of the anonymity order in the usual terms and ordered a restriction against searches of the court file by members of the public unless with the court’s leave.

6.These are my reasons.

7.To give effect to the anonymity order, in this Reasons for Decision I will, to the extent necessary, anonymize certain cities, individuals and companies, and references will be footnoted to enable the parties themselves to identify the individual or company concerned.

Background, events and factual matters

8.X was and is an officer of, and a person having substantial interest in, the CBC Group which is said to be Asia's largest healthcare-dedicated investment firm, and of which P2 is a part.

9.X and Y were married in 2019.　X is the husband and Y the wife.　 Prior to the marriage they have signed a Deed of Pre-Nuptial Agreement (“the PNA”). Since the marriage they lived in a major city in China, which I will call City A. They have a son.

10.In early April 2022 during the COVID pandemic and to avoid the lock-down policy of City A, X had to be relocated to another major city in Asia, which I will call City B, for work reasons, on short notice and alone. Apparently, X and Y had major arguments over it. X said that he had repeatedly requested Y to bring the son with her to move to City B, and Y refused and the arguments they had mostly surrounded the issue of money^[1]. Y said that X blocked her from WeChat and other social media from then until mid-June 2022^[2].

11.In mid-July 2022, Y, her son and her parents moved to reside in Hong Kong.

12.In August 2022, divorced proceedings were commenced by Y against X (“the Divorce Proceedings”), which is on-going.

13.X did not take with him the subject desktop computer (“the Desktop Computer”) when he re-located from City A to City B. In late July 2022, X’s colleague found out that the Desktop Computer was no longer in X’s apartment in City A, and X suspected that it was taken by Y. Y refused a demand by letter dated 3 August 2022^[3] to return the Desktop Computer.

14.X and P2’s case is that the Desktop Computer belonged to P2 licensed to X for work use, and that (a) through the Desktop Computer X’s work email account (“the Work Email Account”) and emails therein, which were highly confidential and commercially sensitive, could be accessed (until July 2022 when X changed the password), (b) stored therein was other confidential information such as CBC Group’s Client Investor List with names and contact information of the contact persons and CBC Group’s employees’ contacts (some of which are not publicly available), and (c) stored therein were also X’s private information and materials, some of them being the attachments to the Offending Emails and Further Offending Emails (defined below)(“the Attachments”).

15.X and P2’s case is that Y has wrongfully accessed and used the aforesaid information and materials. This is strongly denied by Y.

16.Y’s case is that the Desktop Computer was bought by X for the use of the family. She brought the Desktop Computer with her when she moved from City A to Hong Kong.

17.It is not entirely clear whether Y is disputing that the Work Email Account and emails, confidential information or X’s private information and materials could have been accessed by the use of the Desktop Computer, though she affirmed that she was not aware that the Attachments could be obtained or accessed through the use of the Desktop Computer^[4].

18.X’s case and evidence was that subsequent to the breakdown of negotiations between him and Y in relation to the Divorce Proceedings, Y began to send the Offending Emails^[5].

19.X exhibited screen shots of WeChat messages exchanged between him and Y from early December 2022 to 2 January 2023^[6] in which, according to X, Y threatened to “bring me down” with her by ruining X’s reputation and reporting him about his tax evasion. The said WeChat messages showed that : (a) Y listed out on 4 December the various cash and assets she wanted to receive by way of settlement^[7], to which X counter-offered on 5 December “… to execute according to our PNA agreement”, and Y immediately answered “… I know what I’ll bring to you” ^[8], (b) X said on 2 January 2023 “你去參考下 anti doxing law, 找个靠谱的 criminal lawyer再来跟我说话”^[9], and (c) Y said (on a date not legible) “… 我会去告发你 …”^[10]. I note that there seem to be gaps in the above WeChat message screen shots and they therefore probably are not a full record of the messages exchanged between X and Y at the time.

20.To these WeChat messages Y has not responded in her 1^st Affirmation filed on 4 May 2023 or her 2^nd Affirmation filed on 27 June 2023. In this regard, I take full note of what Y stated in her 1^st Affirmation that failure to respond should not be taken as an admission.

21.On the following dates, these emails (together “the Offending Emails”) were sent:

a. 16 December 2022 (“the 16 December 2022 Email”);

b. 22 December 2022 (“the First 22 December 2022 Email”);

c. 22 December 2022 (“the Second 22 December 2022 Email”);

d. 24 December 2022 (“the Timetable Email”); and

e. 4 January 2023 (“the 4 January 2023 Email”).

22.After the ex-parte injunction was granted and this action commenced, the following emails (together “the Further Offending Emails”) were respectively sent on:

a. 16 February 2023 (“the 16 February 2023 Email”);

b. 15 March 2023 (“the 15 March 2023 Email”);

c. 24 March 2023 ("the 24 March 2023 Email”); and

d. 7 April 2023 ("the 7 April 2023 Email”).

The Offending Emails

23.The 16 December 2022 Email^[11]:

a. It was sent from a Gmail account bearing the name [xxxxxx][email protected] (“the Liang Gmail Address”) to the email account of Mr. [T] of a major Singaporean investor with the CBC Group, and copied to X’s work email address and the email addresses of two high ranking officers of the CBC Group.

b. In it, the sender wrote, among others, : (i) “CBC [Group] is managed by a group of women-haters who obviously are also strong supporters to the international prostitution industry”, “there could be potential illegal dealings with underaged girls and possibly human trafficking”, “As this news, together with a few hundreds of following clips, will be released to the public”, “we urge you to take back your investment from CBC before your name is being put in public to be a supporting investor to anti-women prostitution professionals”.

c. In it, the investor was asked to reply to the email to indicate his position as the sender was “in the process of forming the ‘list of anti-women investors’”.

d. Attached to it were screen shots^[12] of text messages and email conversations suggesting that X had hired female escorts to accompany him while he was on CBC Group business in various countries. The screen shots also contained pictures of X’s identity card and the information page of his passport, whereby his photo and all information contained therein were shown.

24.The First 22 December 2022 Email^[13] :

a. It was sent from the Liang Gmail Address to the email account of Mr. [W] of a major Taiwanese investor company of the CBC Group, and copied to X’s work email address only.

b. In it, the sender wrote, among others, : (i) “[X] is deeply involved with serious abusive treatment of women activities on a worldwide basis”, “concern your reputable company which have indirectly supported [X’s] unethical and possibly illegal actions”, “[X] is a … solicitor of … potentially criminal, cross-border sexual services …”, “[X’s] substantial “investment” in prostitution will soon be disclosed to the international financial community…”, “[X’s] potential violation of strict anti-prostitution laws in …. As well as prevention of human trafficking law in …”, “[X] is also involved in potential criminal offences in different countries with serious consequences … “, “[X] will face serious criminal offence litigations”, and “all these will eventually lead to CBC’s non-compliance as a financial license holder…”.

c. The sender also said that “We have reluctantly disclosed this information to you prior to widely distributing the same to the general public, and we hope for your sake and that of the investors that you will take appropriate action.”

d. In the email was listed a number of public companies in which, the sender said, X had control and investment in.

e. In the email, the sender listed 19 other “CBC’s juggernaut co-investors” who would have “immense concern”.

f. In the email, X’s past and present marital status and family situations were disclosed.

g. Attached to it was a pdf file containing 25 pages, each page containing multiple screen shots of text messages and email conversations which were similar to those described in paragraph 23(d) above. Again, the screen shots also contained pictures of X’s identity card and the information page of his passport.

25.The Second 22 December 2022 Email^[14] has essentially identical contents and the same attachment as the First 22 December 2022 Email, save some changes in the introductory words. It was sent from the Liang Gmail Address to the email address of the assistant to the chairman of the same major Taiwanese investor company mentioned in paragraph 24(a) above, and the said assistant was addressed to by her full name and her English first name. This email was copied to X’s work email address only.

26.The Timetable Email^[15] was sent from the Liang Gmail Address to X’s work email address on 24 December 2022, 2 days after the First 22 December 2022 Email and the Second 22 December 2022 Email were sent. The entire contents of this email are:

“12/26 Investor (Middle East)

12/30 Investor (UK)

1/3 Investor (Singapore)

1/5 Investor (Singapore)

1/9 Law Enforcement (Chinese Police)

1/9 Investor (Singapore)

1/12 Investor (Singapore)

1/16 Investor (US)

1/19 Investor (Middle East)

1/23 Investor (Europe)

1/26 Financial Regulator (Singapore)

1/26 Law Enforcement (Singapore Tax)

1/30 Law Enforcement (China Tax)

… …

… …

… …”

27.The 4 January 2023 Email^[16], like the Second 22 December 2022 Email, has essentially identical contents and the same attachment as the First 22 December 2022 Email, again save some changes in the introductory words. It was sent from the Liang Gmail Address to the email address of Ms [V] of a UK investor with the CBC Group. It has not been copied to X’s work email address. X learned about it from a colleague of CBC Group to whom Ms [V] forwarded the 4 January 2023 Email to make enquiries.

The Further Offending Emails

28.The 16 February 2023 Email^[17] was sent from the Liang Gmail Address to Ms [T] of a Singapore investor with CBC Group and was not copied to X’s work email Address or anyone. Save the introductory words, it has essentially identical contents as the First 22 December 2022 Email. There was also a pdf file attached to it, which has similar contents as the attachment to the First 22 December 2022 Email.

29.The contents of the 15 March 2023 Email^[18] and the 24 March 2023 Emails^[19] were identical. They were written in simplified Chinese, bearing the same subject, and essentially making similar statements against X as those in the Offending Emails. The 24 March 2023 Email was sent from the Liang Gmail Address while the email address of the sender of the 15 March 2023 Email was illegible in the copy that was in the Hearing Bundles, but it was not the Liang Gmail Address. Both emails were sent to a group of employees of the CBC Group. There were attachments to both emails containing some of the screen shots attached to the Offending Emails.

30.The 7 April 2023 Email^[20] was sent from an email address the first 6 English alphabets of which were identical to that of the Liang Gmail Address. It is written in English and in it were made statements against X similar to those in the Offending Emails, but they were grouped under the headings of “Reputation damage”, “Legal repercussions”, “Ethical concerns”, “Loss of trust”, “Potential regulatory scrutiny”, “Termination or resignation”. Similar screen shots were attached to it, though in smaller volume. Photos of X’s identity card and passport information page^[21] were shown in the attached screen shots.

The Plaintiffs’ causes of action and Y’s defence

31.The Plaintiffs are now suing Y for (a) defamation by publishing the Offending Emails, (b) breach of confidence in that without the authority of the Plaintiffs Y used the information contained in CBC Group’s Client Investor List, information pertaining to X’s investments and shareholdings in various companies and the information contained in various emails in the Work Email Account, (c) further breach of the confidence provided under Article 7.2 of the PNA by Y using information relating to X’s earlier and present marriage, screen shots of X’s identity card and passport, private communications with others and itineraries of X’s business trips, and (d) conversion of the Desktop Computer.

32.Apart from other general non-admissions and denials, Y’s defence case essentially is (a) the Desktop Computer belongs to the family, (b) she did not admit that the Desktop Computer contains the information now X and P2 sued on, (c) she had no knowledge of the nature of data stored in the Desktop Computer, (d) she did not make any use of such information or data, (e) she has not sent or caused to be sent the Offending Emails, (f) it was public information that the addressees of the Offending Emails were investors with the CBC Group, (g) it is possible that the Offending Emails might be sent by business rivals, by hackers working for competitors of CBC Group, by escort agencies in order to blackmail X, and even by X himself.

33.At the hearing and in view of the apparently deliberate and repetitive nature of the Offending Emails (possibly also the Further Offending Emails), Ms Herbert (with her Mr Choi), counsel for X (and also P2) indicated that the Plaintiffs would amend their claim by adding a claim for harassment (and possibly others). Mr Yip (with him Ku), counsel for Y, on the other hand, indicated that Y would amend her Defence by pleading the defence of justification in respect of the defamation claim (and possibly other defences).

Principles applicable to anonymity order

34.The guiding principles are not seriously disputed by the parties, though one aspect of their application is. Mr Yip also placed strong emphasis on his contention that there is a general inclination against anonymity in defamation cases. I will say more about these 2 aspects after stating the general principles.

35.The general principles have been summarized by Coleman J in X Y v Z^[22] :

“58. The starting point and general rule of open justice is that judicial proceedings are held in public and the parties are named in judgments. It is well settled that open administration of justice is a fundamental principle of common law: see, for example, ATV v Communications Authority [2013] 2 HKLRD 354 at §19, as further approved in TCWF v LKKS [2013] HKCA 684; see also Re BU [2012] 4 HKLRD 417.

59. The principle is of importance, from the perspective of administration of justice, for a number of reasons. Amongst them are that: the public nature of proceedings deters inappropriate behaviour on the part of the court; it maintains the public’s confidence in the administration of justice; and it makes uninformed and inaccurate comment about proceedings less likely.

60. In the TCWF case, the Court of Appeal also approved and set out some of the provisions to be found in the UK Practice Guidance (Interim Non-disclosure Orders) [2012] 1 WLR 1003, which deals with the proper approach to the general principle of open justice regarding any application for interim injunctive relief to restrain the publication of information in a variety of situations.

61. Derogations from the general principle of open justice can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice. Any derogation granted, where justified, should be no more than strictly necessary to achieve the purpose.

62. The grant of derogations is not a question of discretion. It is a matter of obligation, and the court is under a duty to either grant the derogation or refuse it when it has applied the relevant test. Any question of derogation from open justice is always fact specific. The burden of establishing any derogation from the general principle lies on the person seeking it. It must be established by clear and cogent evidence.

63. Where an applicant fears risk to life or safety, whether of themselves or others, it must be clearly articulated. Where there is a proper articulation, that is a basis to have proceedings anonymized.

64. The court will have regard to the respective and sometimes competing rights of the parties as well as the general public interest in open justice and in the public reporting of court proceedings.

65. There is no general exception to open justice where privacy or confidentiality is in issue. Applications will only be heard in private if and to the extent that the court is satisfied that by nothing short of exclusion of the public can justice be done. Anonymity will only be granted where it is truly necessary, and then only to the extent that it is necessary.

66. It is also clear that there are various matters which do not by themselves justify any restriction on open administration of justice, including that publicity might lead to embarrassment and inconvenience or damage to professional reputation, or that publicity might lead to economic damage, even very severe economic damage.

67. However, open justice is a means to an end. Where the open administration of justice would frustrate the ultimate aim of doing justice, that would be the most important, if not decisive, consideration to be taken into account when balancing the relevant interests, rights and freedoms involved. It may be necessary to depart from the general rule where the nature or circumstances of the particular proceedings are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice. Where the disclosure of information would carry with it a substantial risk to the administration of justice, the court is likely to exercise its discretion to preserve confidentiality to the extent necessary. The court will be astute not to deter a party from pursuing his case either freely or at all because bringing the case might jeopardise his safety or other well-being. That would also be to jeopardise the administration of justice.

68. Further, where restrictions on open justice are justified, this may take many forms.”

36.It would be apposite to also quote the observations by Stock VP (as he then was) in Re BU^[23] explaining lucidly the basis and justification where curtailment (in a degree as minimal as possible) of open justice is necessary in certain specific instances:

“33. Yet the basis upon which the courts are occasionally compelled to retreat from wholly open justice is the same consideration, namely, the due administration of justice; for if it be shown that disclosure of information carries with it a substantial risk to the administration of justice, the court is likely to exercise its discretion to preserve confidentiality to the extent necessary. There are many circumstances which have over time been identified as permitting of or indeed requiring confidentiality – for example, to protect the interests of children or patients; where there is shown a need to preserve secret technical processes; where publicity would defeat the object of the hearing ( see “The Law of Human Rights” Clayton and Tomlinson 2d ed., Chapter 11) ; blackmail cases, since disclosure of the identity of a witness is likely to prejudice the administration of justice by discouraging victims from coming forward (ibid., p 1403); and where it is shown that a witness or party is at risk of harm from third parties. Quite apart from the reluctance of a court to lend itself, by sanctioning publicity, to the risk of such harm, the failure to protect a party in an instant case from the risk of harm jeopardises the administration of justice in that case by deterring that party from pursuing the case either at all or freely and in other cases by deterring putative parties from pursuing their rights in the courts.”

37.The particular aspect of the application of these principles that is disputed is this. Mr Yip in oral submission repeatedly emphasized that the anonymity need to be justified by clear and cogent evidence (which was not disputed). However, he went on to submit that as there was now before the court no clear and cogent evidence that the Offending Emails and the Further Offending Emails were actually sent by Y, X’s case for anonymity did not even lift off from the ground.

38.Mr Yip was thus submitting that the “clear and cogent evidence” requirement referred to in the guiding principles also concerns the proof of the merits of the applicant’s general case, and not merely concerns matters justifying the anonymity order, which often are unrelated to the general merits.

39.I cannot accept that submission as correct, whether as a matter of principle, or by understanding the said guiding principles properly as illustrated by the decided cases.

40.As a matter of principle for the due administration of justice, there is no good reason why, say, a witness in a blackmail case, which blackmail is supported by clear and cogent evidence at the interlocutory stage, is more deserving of protection from risk of harm, while the witness in another blackmail case, which blackmail at the interlocutory stage is only shown to be “a serious question to be tried”, is less deserving of protection and is thus exposed to the risk of harm. In the latter scenario, the risk of harm to the witness would jeopardize the administration of justice. Evidently and likewise, the same is true in respect of the protection of the interest of children or patients or claimants of discrimination, or the need to preserve secrets of technical processes and such. Such contended proposition by Mr Yip is untenable as a matter of principle.

41.It is also clearly illustrated in the decided cases that the matters that need to be supported by clear and cogent evidence are the matters that lend support to, or justify, the anonymity for the due administration of justice; and not that clear and cogent evidence is required in respect of the general merits of the applicant’s case or claim.

42.For instance, in Re BU, it was the risk to life or safety should the applicant’s identity be revealed that was the basis that was put forth to justify the anonymity. There, the Court of Appeal held that the risk to life or safety had to be “clearly articulated”^[24] and not just “a remote risk”^[25]. The court there did not examine whether his case for judicial review was supported by clear and cogent evidence.

43.Similarly, in L v Equal Opportunities Commission & Others^[26], the Court of Appeal considered various matters in the context of the nature of the proceedings and came to the view that it would be highly undesirable that the claimant’s application for redress would become the material for future discrimination, and thus granted anonymity. Nowhere did the CA consider whether the claimant’s claim of discrimination was supported by clear and cogent evidence.

44.Also similarly, in X Y v Z, the above-mentioned case decided by Coleman J, the learned judge applied no more than the American Cyanamid principles - that is, a serious question to be tried - in evaluating the merits of the plaintiffs’ claim of harassment and intimidation; and on consideration of the pertinent matters (unrelated to whether there was clear and cogent evidence supporting their claim of harassment and intimidation), granted the anonymity order and an order for private hearing.

45.As will be explained, I take the view that there is a serious question to be tried on the Plaintiffs’ claim that the Offending Emails were sent by Y or her agent.

46.I thus reject Y’s contention that the fact that presently there was no direct evidence showing that Y actually sent the Offending Emails is fatal to the continuation of anonymity.

47.Next, Mr Yip emphasized that this was a defamation case and therefore there was all the more reason the tenet of open justice should apply as observed by Hartmann J (as he then was) in Chao Pak Ki Raymund & Another v Hong Kong Society of Accountants^[27].

“15. Inherent in the principle of open justice is that, unless the interests of justice otherwise dictate, the identity of the parties should be known. No doubt, a great many litigants would rather enter into litigation behind the shield of anonymity but, as Lord Woolf MR said in R v Legal Aid Board, ex parte Kaim Todner (supra, para.14), parties to litigation have to accept the embarrassment and damage to their reputation and the possible consequential loss which can be inherent in being involved in litigation. The protection to which they are entitled is provided not by anonymity but by a judgment delivered in public which will refute unfounded allegations or misplaced suspicions.”

48.The fact that the court should take note and consider the nature and context of a defamation claim such that anonymity should generally be inclined against is a matter not seriously disputed by Ms Herbert, and one that this court finds some force in.

Discussion

49.Though there is no direct evidence proving that Y obtained the afore-mentioned information and materials from the Desktop Computer and sent the Offending Emails, there is substantial tenable circumstantial evidence proving so.

50.Such tenable matters include (a) it is common ground that Y has had possession and use of the Desktop Computer since early April until July, (b) X’s evidence that the voluminous messages and emails, screen shots of which were attached to the Offending Emails, and especially the screen shots of X’s identity card and passport information page, were very private information and materials that X said were stored in the Desktop Computer or were accessible by the Work Email Account which, before July 2022, could be operated by the Desktop Computer, (c) according to Y^[28], the earliest 2 recipients of the Offending Emails, namely Mr [T] and Mr [W] had very close relationship with X and both attended X and Y’s wedding, (d) X’s evidence that while here and there the identities of some of the investors with the CBC Group could be made available, the Offending Emails named accurately therein a list of 20 heavy-weight investors of the CBC Group, which could only be possible by accessing CBC Group’s confidential Client Investor List, (e) the fact that the UK investor (to whom was sent the 3 January 2023 Email) and the Singapore investor (to whom was sent the 16 February 2023 Email) were investors with the CBC Group was never made known to the public, (f) the name and email address of the assistant of the chairman of the Taiwanese investor (to whom the Second 22 December 2022 Email was sent) was not a publicly available information, (g) the status of X’s previous marriage, his present marriage, the fact that he has children from them were very private information, (h) the details of his investments and holdings of shares in various public companies were very private information, and (i) that all the above-mentioned confidential, private information and materials were known to Y and/or were only accessible through the Desktop Computers.

51.On present evidence and materials, I conclude that there is a serious question to be tried on the Plaintiffs’ claim that Y accessed such information and materials from the Desktop Computer and used them and either sent or caused to be sent the Offending Emails.

52.The contents of the Offending Emails, the similarities in their contents and attachments, the repetitive nature of them, the timing that they were respectively sent, and the addressees being the major client investors with the CBC Group, in my view, tend to show that they were more than mere potentially defamatory materials published casually. The words used such as “women-haters”, “underaged girls”, “human trafficking”, “cross-border sexual services”, and such were sensational words that would attract negative publicity. The screen shots of X’s identity card and passport information page no doubt would cause extra embarrassment to X, if not any other hazard. Importantly, in each of the Offending Emails was contained the statement to the effect that more of such similar materials would be made public, that the negative publicity would bring down not only the CBC Group but also the investors to whom the Offending Emails were addressed, and would also bring them down together with other co-investors with the CBC Group, such that the addressees were, very arguably, effectively being coerced “to take back your investment” or “to take appropriate action”.

53.Considering the above, it seems to me very arguable that the Offending Emails were targeted “strikes” specifically aimed or intended to cause harm to X and the CBC Group. I also think very arguable X’s characterization that the Timetable Email, read in the circumstances, amounted to a threat to X that other similar emails would be disseminated to other investors, law enforcement agencies or regulatory bodies in the timeframe therein stated.

54.It is quite evident, as Ms Herbert submitted, which I accept, that such threatened further dissemination or negative publicity would potentially destroy the CBC Group; or put differently, would cause them irreparable harm.

55.As mentioned, the Plaintiffs indicated that they would amend their claim by adding at least the claim for harassment.

56.Therefore, in my view, I accept that X (and later P2) had little choice but to commence this action to protect himself and CBC Group from such further threatened harm. Thus, in the particular circumstances of this case, I do not accept Y’s submission that by choosing to commence this action, X and the CBC Group should be regarded as having reasonably accepted the attendant embarrassment and damage to their reputation, as in a usual defamation case. In other words, in the particular circumstances of this case I am not persuaded that X and the CBC Group are, or should be, forced to be subjected to the plight that, if they don’t sue, they have no legal means to stop the threatened harm, but if they do sue, they are taken to have accepted the negative publicity and therefore not entitled to anonymity in relation to X.

57.On the present evidence and circumstances, I agree with Ms Herbert’s submission that if the anonymity order were lifted, there is a high risk that negative publicity, previously threatened by the sender(s) of the Offending Emails, could and would be generated against X and against the CBC Group by publicizing this action, and say, together with some description or summary of the Offending Emails and the Attachments as the subject matters.

58.With respect to Mr Yip, I cannot accept his submission that there was no evidence to show that such publicity would harm X or CBC Group. The potential harm is rather self-evident and all along threatened by the sender(s) of the Offending Emails.

59.I also with respect must reject Mr Yip’s submission that the protection afforded by the injunction would be sufficient and the anonymity order added nothing to it. The injunction merely enjoins Y from further disseminating the contents of the Offending Emails and the Attachments. The anonymity order, on the other hand, additionally prohibits any one from naming X and Y as parties to this action and restrict public searches of the court file unless with leave.

60.In the round, I conclude that this is a situation that if I sanction publicity by lifting the anonymity order, the very ill that X and P2 have sought by this action to prevent would be achieved through the court’s own process, and the failure to protect X and P2 from the risk of such harm jeopardises the administration of justice by deterring X and P2 from pursuing this case either at all or freely. Therefore, in my view the course better serve the administration of justice is to curtail the openness minimally by continuing the anonymity order and restricting the search of the court file.

61.As a lesser consideration in favour of anonymity, I am also persuaded by Ms Herbert that the continuation of the anonymity would, like in the X Y v Z case, provide some ‘safe space’ within which the parties might attempt to seek to resolve matters without going to a trial.

62.In the premises and at the conclusion of the hearing, and upon the Plaintiffs’ undertaking to take out a summons to re-amend their Amended Statement of Claim within 21 days, I so ordered as said. That was despite Y’s objection, who asked that this matter be not decided but adjourned pending the outcome of Y’s opposition to the intended amendment application. I refused that course because (a) in any case pending the determination of the opposition to the intended amendment I would have continued the anonymity in the interim, (b) the continuation of anonymity would always be subject to reconsideration, and it seemed to me that if Y won the opposition, she might, if so advised, then seek to discharge the anonymity order on that basis, and (c) since I have already heard the matter substantively, it would be much more in line with the underlying objectives that I rendered my decision and gave my order then, rather than left it pending.

63.For completeness, I would also mention that I did not find meritorious Y’s “application” to discharge the ex-parte anonymity order based on alleged material non-disclosure (for which no summons has been issued). Rather, I found completely baseless Y’s complaint of material non-disclosure in that X had not fully presented to K Yeung J all the matters and arguments now Y relied on in opposition of the continuation of the anonymity order. X has evidently drawn the attention of K Yeung J to the correct principles and has properly responded to the learned Judge’s queries regarding weaknesses in X’s case, namely and including, that there was no direct evidence showing that Y has accessed the information and materials and has sent the Offending Emails.

64.After I made the order at the conclusion of the hearing, Y asked for costs of the hearing (but without having the opportunity to fully argue it) on the basis that this court only granted the continuation because the Plaintiffs had undertaken to amend their claim. Provisionally, (a) I am not persuaded that had the Plaintiffs made the amendment before the hearing, Y would have consented to the continuation which would then have made the hearing unnecessary, and (b) as I expressed above, I continued the order for reasons not simply because the Plaintiffs had undertaken to amend.

65.Thus and on a nisi basis, I order that costs of the Summons be in the cause, as asked by X, which would be made absolute within 14 days unless within that time any party applies by summons to vary.

66.I thank counsel for their assistance.

Miss Elizabeth HERBERT and Mr Samuelson CHOI, instructed by Messrs TK Tsui & Co, for the 1^st and 2^nd Plaintiffs

Mr Richard YIP and Mr Stephen KU, instructed by Messrs CY Tsang & Co, for the Defendant