Yan Yu Ying v. Leung Wing Hei

HCA 2295/2019

[2024] HKCFI 1770

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2295 OF 2019

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DECISION

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Applications

1.By summons dated 21 November 2023 (the “Summons”), the plaintiff (“P”) applies for the issue of a letter of request to the Superior Court of California, County of Santa Clara, the United States of America (“USA”) and/or the United States District Court, Northern District of California, USA, for the production by Google LLC (“Google”) of the documents specified in the schedule annexed to the Summons.

2.There is another summons dated 15 April 2024 (the “Amendment Summons”) issued by P for leave to amend the schedule annexed to the Summons. The defendant (“D”) does not oppose the Amendment Summons. I shall therefore make an order in terms of the Amendment Summons, with costs to P, summarily assessed at HK$1,045.

3.After the amendment, the documents requested are as follows:

(a)  Record of any and all email messages received by [email protected] in July 2017, including the original message file and all relevant metadata, including (without limitation) the message(s)'s Message ID:, Created at:, From:, To:, Received: [date and time] information, subject, read/unread status, and (where applicable) date deleted, whether in the “inbox” folder, “spam mail” folder, “junk mail” folder, “mail trash bin” folder or any other folder.

(b)  Record of any and all email messages received by [email protected] from the email address [email protected] or any other email from any sender purporting itself to be “SEC-M”, “Secret-Message” or “密安訊” or “密安讯”, including the original message file and all relevant metadata, including (without limitation) the message(s)'s Created at:, From:, To:, Received: [date and time] information, subject, read/unread status, and (where applicable) date deleted, whether in the “inbox” folder, “spam mail” folder, “junk mail” folder, “mail trash bin” folder or any other folder.

(c)  This record specifically excludes, to the extent applicable as requester is the account holder and is seeking her own information, any information that is prohibited by the Stored Communications Act. 18 U.S.C. § 2701, et seq. ("SCA"). Specifically, while the subject lines of emails are content under the SCA. the requestor is seeking her own records, which is permissible under the SCA. 18 U.S.C. § 2701(c)(2).

4.There is no dispute that the email address by [email protected] belongs to P.

Background Facts

5.The facts of this case had been set out by Yeung J in his decision dated 7 June 2022[1] on P’s application for an injunction, which I gratefully adopt as follows:

“4. The dispute between the parties relates to 999.9900261[2] Bitcoins (the ‘Subject Bitcoins’). P says that D has stolen them from her. D’s case is that P transferred them to him in exchange for 885,210.866 of D’s The Public Coin (the ‘TPC’) under a swap agreement reached between them in March 2018 (the ‘Swap Agreement’). TPC is said to be another and a newer type of cryptocurrency.

5. In August 2018, P reported her alleged loss of the Subject Bitcoins to the police. In September 2018, D was arrested.

6. On 12 December 2019, P took out the writ herein. The claim is based on fraud and internet theft. She seeks amongst others restitution of the Subject Bitcoins, a declaration that D holds them and all assets derived from them in unjust enrichment or on trust for her, or damages in the alternative.

7. The Injunction Summons first came before Lisa Wong J on 10 January 2020. It was adjourned for substantive argument (subsequently fixed to take place on 25 April 2022 with 2 days reserved, i.e. the present hearing).

8. When before Her Ladyship on that occasion, P made an application for interim‑interim relief. It was refused.

9. Subsequently D was charged and prosecuted for the alleged theft of the Subject Bitcoins. His trial took place in the District Court between late October and early November 2020 before Deputy District Judge Colin Wong (the ‘Criminal Trial’, the ‘Learned Deputy District Judge’). P gave evidence as one of the prosecution witnesses. D also chose to testify. A number of expert witnesses were also called. On 4 December 2020, D was acquitted of all charges he faced.”

6.Essentially, P alleges that D has misappropriated the Subject Bitcoins. D on the other hand says that P had transferred the Subject Bitcoins in exchange for D’s TPC under a Swap Agreement. D says the Swap Agreement was recorded in a conversation between P and D in an instant messaging app called Secret-Message (“SEC-M”). P says she had no knowledge about SEC-M and that the messages on SEC-M are fabricated.

7.To this end, D has produced screenshots from the SEC-M (“SEC-M Screenshots”) which show details of the transactions between D and P. P alleges that the SEC-M Screenshots are forged.

8.As such, the authenticity of the SEC-M screenshots produced by D are in dispute and is an issue which may determine the case.

9.In the Criminal Trial, DDJ Colin Wong accepted the messages as shown in the SEC-M Screenshots to have been the accurate record of correspondence between D and P[3].

Applicable Principles

10.Parties agreed on the applicable principles, which have been recently summarised by Cheng J in China Metal Recycling (Holdings) Limited (In Liquidation) v Deloitte Touche Tohmatsu[4]:

(a)  The court has an inherent jurisdiction to issue a letter of request to another court for assistance in obtaining evidence; whether to do so involves an exercise of discretion.

(b)  In exercising its discretion, the Court would consider the following factors:

(i)  Whether it is necessary and in the interests of justice to obtain the documents. This includes a consideration of whether the evidence is relevant and material.

(ii)  Whether the application is made with such promptness as not to cause unreasonable delay.

(iii)  Whether the documents exist and are likely to be in the possession of the person from whom production is sought.

11.Of the “necessary in the interest of justice” requirement, Coleman J in Delco Participation v HWH[5] held that:

“25. It also falls to the applicant to satisfy the court that the evidence to be obtained is necessary in the interests of justice. The actual wording to be found in Order 39 rule 1 is ‘necessary for the purposes of justice’, which seems to me to identify one requirement of necessity, and not two separate requirements of (a) necessity and (b) in the interests of justice. In so far as any submissions have seemed to suggest two separate requirements, I reject that point. The necessity is tied to the purposes of justice.

26. One important feature is to consider whether the witness can give substantial evidence material to an issue in the trial, requiring the court to identify the issue to which the evidence is said to relate, and then to consider whether the evidence sought is relevant to that issue. That approach identifies that the relevant interests or purposes of justice are the interests of all the parties to the litigation (not just the applicant). That triggers a consideration of potential prejudice as well as benefit in the letter of request procedure, but it should be obvious that one of the purposes of justice is to seek to reach the fair adjudication of the factual issue(s) in question.”

12.Delay is to count against the application if it is inordinate, or if it causes real prejudice which cannot be compensated in costs.[6]

P’s Stance

13.Mr Jasper Wong, counsel for P, submitted that based on the following, the court should exercise its discretion to issue the letter of request:

(a)  The records sought are directly relevant to the key issue of authenticity of the SEC-M Screenshots produced by D, and as such is necessary in the interest of justice.

(b)  D initially did not oppose to the relevant evidence being requested from Google.

(c)  The requested evidence exists. In support of such contention, Mr Wong relies on several US cases (Federal Trade Commission v Ameridebt, Inc, Optiver Australia Pty Ltd. & Anor. v. Tibra Trading Pty) where disclosure orders similar to those presently sought had been granted.

(d)  It is unlikely for Google to have discarded data which are likely to be plain text format as data storage has become extremely cheap.

D’s stance

14.Mr Bernard Man SC leading Mr Jonathan Ng, counsel for D, submitted that the court should not exercise its discretion to issue the letter of request for assistance in obtaining evidence from Google for the following reasons:

(a)  P fails to discharge the onus to show that the relevant records are likely to be in Google’s possession. This is based on a Q&A Article on Google’s website which states that administrators could not recover emails that had been deleted more than 55 days ago.

(b)  D’s expert has opined that Google would unlikely retain records of email which had been deleted 7 years ago in 2017.

(c)  P cannot rely on the US judgments as they are inadmissible and cannot be relied upon by P as evidence of any alleged facts in relation to Google’s retention of deleted emails. A judgment in personam is no evidence of the truth of the decision or its grounds[7].

Discussion: Whether Necessary in the Interest of Justice

15.In determining if such evidence is necessary in the interests of justice, one needs to identify the issue to which the evidence is said to relate, and then to consider whether the evidence sought is relevant and material to that issue.

16.P says the evidence sought amounts to direct evidence on the “blue tick issue” – namely, as D has produced a screenshot showing a blue tick against P’s email address in the SEC-M app, it seems to indicate that P had registered for and verified a SEC-M account. This would support D’s defence that there was a Swap Agreement and that P had messaged with D on the SEC-M app. What P seeks to achieve is essentially to show that if there was no such email received from SEC-M as confirmed by Google, that refutes the “blue-tick” issue.

17.However, although the evidence sought may be relevant, I am not convinced that the answer from Google would, as suggested by Mr Wong, assist the court in the resolution of the “blue-tick issue”:

(a)  Under the present formulation of the request, it only asks for emails “whether in the ‘inbox’ folder, ‘spam mail’ folder, ‘junk mail’ folder, ‘mail trash bin’ folder or any other folder”. It does not deal with the situation where an email has been deleted from the mail trash bin. As such, it still leaves open for D to argue that P could have deleted the email herself from the mail trash bin.

(b)  Thus, even if no email can be found by Google, before one can reach the conclusion sought by P (refuting the “blue-tick” issue by saying that there was never any email sent from SEC-M that reached P’s email address), there would need to be the following:

(i)  An acknowledgment from Google that they have not deleted any emails belonging to P’s email account since 2007.

(ii)  An acknowledgment from Google that even if an account holder has permanently deleted an email from their account, they would still retain a copy of it.

Such acknowledgments are currently not within the formulation of the Letter of Request and will thus unlikely be provided by Google.

(c)  Mr Wong argues that such answers are not required by P; if D requires them, it is for D to make an application. I do not think that is the correct analysis. P needs to show to the court’s satisfaction that what they are seeking is relevant and material. In doing so, P cannot just seek what satisfies their case only, without regard to any possible rebuttal that D is likely to have on the interpretation of the information sought.

(d)  The likelihood of Google, an international conglomerate, willingly divulge information concerning its internal policy that it has chosen to not made available generally to the public, is unknown.

(e)  Conversely, if Google finds an email in P’s email account that was sent from SEC-M, Mr Wong fairly accepts P will not concede failure, as she would still run her case on the basis that she has never used SEC-M, even in the event that an email is found in her account. In that case, the court will still need to decide between the different expert opinions and the credibility of P and D.

(f)  It can thus be seen that whatever the outcome, the court is not assisted, as neither possibility would determine the “blue-tick” issue.

18.It is entirely foreseeable that there is a likelihood that the Letter of Request sought would generate more questions than it would answer, and the answers to the questions generated are not readily available or easily obtained.

19.I am therefore of the view that although the evidence sought may be relevant, P has not shown that it is material, or necessary in the interests of justice.

Discussion: In Existence or in Possession of Google?

20.Parties’ arguments concentrated on whether the evidence sought would still be in existence or in possession of Google. In analysing this issue, it must be borne in mind that the burden is on P to demonstrate to the court’s satisfaction that the evidence sought would still be available after 7 years, and NOT that there is no evidence to show that it is no longer available.

21.What is of note in this case is that the information sought is from 7 years ago. The preliminary requests from P to Google had not been fruitful. This is even though P is simply seeking information of her own account. The standard reply from Google seems to suggest that an account holder can simply access their own data stored within their account, and that there is no restriction for an account holder to access the information in their own account. Such standard reply suggests that whatever data that is available to the account holder would be within the control of him/her. The other content from the standard reply seems to relate to a request from someone other than the account holder to access the data.

22.Mr Wong relies heavily on the opinion of Mr Pong, P’s expert, on the likelihood of such emails having been retained. With respect, Mr Pong is not an expert on Google’s policy on the retention of emails. All Mr Pong could do is to speculate, using general knowledge on why it might be possible that such emails still exist. I cannot accept such opinion to be evidence showing the existence of such information on Google’s part. There might be various considerations by Google on how and for what period they would retain emails, or emails that had been hard-deleted by an account holder. Technological limits may not be the only considerations taken into account by Google.

23.Mr Wong relied on three cases from the US in support of the contention that the records sought are still in existence.

24.In Federal Trade Commission v. Ameridebt, Inc.[8], the court made a subpoena against Google for:

“[a]ll documents concerning all Gmail accounts of Baker, including but not limited to the Gmail account of [email protected], for the period from January 1, 2003 to present, including but not limited to all e-mails and messages stored in all mailboxes, folders, in-boxes, sent items and deleted items and all links to related web pages contained in such e-mail messages.”

25.However, as submitted by Mr Man, the context of this case is completely different from our present one: in Ameridebt, the email account in question belonged to a third party. The focus of the case was also not on the existence of such documents.

26.In Optiver Australia Pty. Ltd. & Anor. v. Tibra Trading Pty[9], the court granted a disclosure order concerning the “the recipient(s), sender, subject, date sent, date received, date read, and date deleted” of, among others, emails in a Gmail email address deleted 6 years prior to the order.

27.Again, the party seeking disclosure is the opponent of the account holder. The focus of that application was not on the existence of the documents but on whether disclosure was prohibited under certain US law.

28.It is also important to note that in neither of the US cases was it apparent that Google was able to produce the information sought. P cannot rely on the terms of an order having been made as evidence of Google’s retention policy and that the documents sought are still in existence.

29.Rocky Mountain Bank v Google Inc[10] also does not assist P as Google was only asked to provide information on 23 September 2009 in respect of an email received by a user on 12 August 2009 and deleted on 19 September 2009.

30.None of the US cases relied upon can be taken as evidence of the existence of the documents or information sought from Google.

31.As such, P has failed to demonstrate that the documents exist and are likely to be in the possession of the person from whom production is sought.

Delay

32.D also complains that there has been undue delay on P’s part in taking out the current application. P first had notice of Jeffries’ 2^nd Report as early as in April 2021. P’s request was first denied by Google on in December 2022. However, the Summons was only taken out on 23 November 2023 (more than 2.5 years after Jeffries’ 2^nd Report has been adduced in this action), when the action (which was commenced in 2019) is almost ready to be set down for trial.

33.Mr Wong complains that D has never raised delay as a ground in opposing the present application before written submissions were lodged, and that P is prejudiced as she could have adduced evidence to rebut the alleged delay.

34.In any event, this is not a point heavily relied upon by D as there was no submission on whether the alleged delay has caused real prejudice which cannot be compensated in costs.

35.Further, in light of my views on the other requirements, it is not necessary to come to a view on whether there was delay on P’s part, it being a relatively subsidiary point.

Determination

36.As P has failed to discharge her burden in showing that:

(a)  it is necessary and in the interests of justice to obtain the documents, and

(b)  the documents exist and are likely to be in the possession of Google;

P’s application fails.

Costs

37.Costs follow the event. I make an order nisi that costs of the Summons be to D, to be summarily assessed if not agreed, with certificate for 1 counsel. Such costs order will become absolute if there is no application is taken out within 14 days hereof for variation.

38.D do lodge and serve his statement of costs within 14 days hereof. P do lodge and serve her list of objections, if any, within 14 days thereafter; failing which the court will proceed to assess costs summarily on paper.

39.I thank counsel for their assistance.

Mr Jasper Wong, instructed by Edwin Yun & Co, for the plaintiff

Mr Bernard Man SC leading Mr Jonathan Ng, instructed by Ho & Ip, for the defendant