Tahoe Life Insurance Company Ltd v. Cheung Wai Yi

HCA 344/2024

[2024] HKCFI 782

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 344 OF 2024

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BETWEEN

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DECISION

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1.This is the first hearing on a Friday Summons Morning of the summons (“Summons”)  taken out by the plaintiff (“P”)  against the defendant (“D”)  for an injunction (a)  restraining D from divulging the Confidential Information / Documents as defined in the Schedule to the Summons (the “Schedule”, and the “Confidential Information / Documents”)  and (b)  compelling D to deliver up and hand over to P the Confidential Information / Documents.

2.Ms Shannon Leung appears for P.  D does not appear.

3.I have considered the affirmation of service of Ip Wai Hung Harry.  I am satisfied that all requisite documents have validly been served upon D.  D is aware of the present hearing.  On the morning of 29 February 2024, she sent an email to P’s legal advisers.  She said therein that “Due to my low energy level and acute depression, there is a possibility that I will not attend the hearing tomorrow.”  I will come back to this email. 

4.Given the valid service and D’s knowledge of the present hearing, and having considered the nature of the application, despite D’s non-appearance, I deem it appropriate to proceed with the application.

5.P’s application is supported by the affidavit of Francis Lo.  He is P’s Head of Legal & Compliance.

6.P is an insurance company incorporated in Bermuda.  It offers a diverse range of insurance products in Hong Kong.

7.Between 2 February and 2 August 2023, D was under P’s employ.  She held the position of Executive Assistant.

8.There was a written employment contract between P and D.  I have considered its contents.  Clause 13 thereof is of particular relevance.  It governed the Use of information, in the following terms:

“13. Use of Information

Duty of confidentiality of all staff to the Company and its agents or customers is governed by the Personal Data (Privacy)  Ordinance as well as the common law. Without limiting your duty under the law, and in addition thereto, you must not, during and/or after termination of your employment with the Company, directly or indirectly divulge, disclose, or communicate to any person, firm or corporation in any manner and for any purpose whatsoever, including, without limitation, for financial gain in any way (except necessary for the proper performance of your duties under this employment or with the written consent of the Company)  any information of any kind, nature, or description concerning any matter affecting or relating to the business of the Company, or any matter affecting or relating to its agents or customers, including without limitation to:-

(i)  any trade secrets or any correspondence, accounts, connections or dealings of the Company or any knowledge gained in relation thereto during your employment; and

(ii)  any information whatsoever concerning any past or present agents or customers of the Company.”

9.I have also considered P’s Code of Conduct for Staff, which applied to D.

10.After the termination of D’s employment, D started a claim against P before the Labour Tribunal.  D withdrew that action on 15 February 2024.

11.We are not concerned with the details of that claim.  What sparked off the present application are 2 emails sent by D to P’s CEO on 20 February 2024 at 0408 and 1443 (the “1^st Email” and “2^nd Email”):

(a)  They were both copied to the Labour Tribunal, P’s HR Department, and a number of P’s other officers;

(b)  Therein, D complained about her health, and the stress and anxiety she said she had had from her previous employment with P.  She requested P to “reimburse” her despite the withdrawal of her claim before the Labour Tribunal;

(c)  Towards the end of each of the Emails, D wrote “Attached herewith the work I can do and accomplish properly when I was in good state of health.”

(d)  To the 1^st Email, she attached 2 pdf files:

(i)  Management Meeting Minutes_20230228.pdf (being P’s Management Meeting Minutes dated 10 January 2023), and

(ii)  Exco Meeting Minutes 20230324.pdf (being P’s Exco Meeting Minutes dated 24 March 2023);

(e)  To the 2^nd Email, she attached 2 other pdf files:

(i)  Management Meeting 20230228 (Final).pdf (being PowerPoints of P’s Management Meeting dated 28 February 2023), and

(ii)  Exco Meeting 20230324 (Final).pdf (being PowerPoints of P’s Exco Meeting dated 24 March 2023).

12.Mr Francis Lo says that P was alarmed by D’s possession and disclosure of those files.  He was then authorised to conduct a search of the log of D’s emails exchanged while she was still under P’s employ.  The following matters have been discovered:

(a)  On 8 and 17 March, and 2 August 2023 (2 August 2023 being her last day of employment with P), D made use of her email account at P and send a number of emails to her own personal email accounts;

(b)  On 8 March 2023, one email was sent, 2 on 17 March 2023, and 20 on 2 August 2023;

(c)  Those 20 sent on 2 August 2023 were sent to 2 different email addresses of D’s (11 to one, and 9 to another);

(d)  Attached to each of those emails were pdf files, Excel Tables and/or various documents of P’s, including minutes and PowerPoints of P’s Management Meeting, P’s Board of Directors Monitoring Report, budget reports, board minutes, details of P’s auditors and bank accounts, P’s expenses, certain death claim forms, minutes of meetings of P’s Investment Committee, communications between P and the Insurance Authority on P’s operation, and Audit Committee meeting deck;

(e)  Including the 4 attached to the 1^st and 2^nd Emails, there are altogether some 40 of such attachments (the “Attachments”).  Discounting one overlap, they are tabulated in the Schedule as being Confidential Information / Documents.

13.I have considered the authorities cited to me, which include American Cyanamid Co. v Ethicon Ltd [1975] AC 396, Faccenda Chicken Ltd v Fowler and others [1987] 1 Ch 117 at 135-136, in PCCW-HKT Telephone Limited v Aitken (2009)  12 HKCFAR 114 at para 23, and Face It Ltd v Luk Mei Ling and others [2019] HKCFI 1416 at para 10.

14.D has filed no evidence.  But in the email she sent to P’s legal advisers yesterday, she does not deny possession of the Attachments, but claims that “The purpose of keeping the files is purely for self-learning and education purposes.  No leakage of information has happened”, and that “There is ZERO damage to Tahoe Life about my breach of confidential data as I have not even read the documents in person.”

15.I have considered the contents of those Attachments.  P has at least demonstrated that there is a serious issue to be tried that disclosure of the Attachments and the information contained therein are either prohibited expressly by the terms of D’s employment contract, or that they contained trade secret so that any disclosure by D even after the termination of her employment with P is prohibited by implied terms under the principles explained in Faccenda.

16.Given the nature of the Attachments and the information therein, I am satisfied that their disclosure would result in irreparable damage to P.

17.Given the way in which D has been handling the Confidential Information / Documents, risk of further disclosure unless restrained may be inferred.  No undertaking against further disclosure has been tendered.

18.P is financially viable in honouring the undertaking of damages it offers.

19.Balance of convenience is clearly in favor of a grant.

20.Subject to the following matters, I grant P’s application:

(a)  In respect of the Confidential Information / Documents set out in the Schedule, I note that Item 9 therein is not an attachment to any of the emails mentioned above.  I delete that from the Schedule;

(b)  At §2 of the Summons, between the word “be” and “restrained”, the words “until the conclusion of the trial hereof or further order” should be added to reflect the interlocutory nature of the injunction.

21.In respect of costs, I note that no pre-application letter has been sent to D.  There is insufficient information before me at this stage to form any view as to whether D might have, if asked before action, voluntarily returned the Confidential Information / Documents with an undertaking against disclosure.  At this stage, my view is that the most appropriate order is to reserve costs, and I so order.

Ms Shannon Leung, instructed by C.L. Chow & Macksion Chan, for the Plaintiff

The Defendant was not represented and did not appear