Yan Yu Ying v. Leung Wing Hei

HCA 2295/2019

[2024] HKCFI 3524

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2295 OF 2019

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D E C I S I O N

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Background

1.On 23 July 2024, I dismissed the application of plaintiff (“P”) for the issue of a letter of request to the Superior Court of California, County of Santa Clara, USA and/or the United States District Court, Northern District of California, USA, for the production by Google of certain documents (the “Decision”)[1]. I refer to the Decision for the background of the present case and will continue to adopt the abbreviations used therein.

Applications

2.There are two summonses before the court:

(1)  By summons dated 5 August 2024, P applies to vary the Court’s costs order nisi (the “Costs Variation Summons”).

(2)  By a Summons dated 6 August 2024, P applies for leave to appeal against the Decision (the “Leave to Appeal Summons”).

The Leave to Appeal Summons

3.P’s proposed grounds of appeal against the Decision are set out in the draft Notice of Appeal attached to the Leave to Appeal Summons. They are as follows:

(1)  The court had erred in holding that P “has not shown that it is material, or necessary in the interests of justice” for the letter of request to be issued at Paragraph 19 of the Decision. The records requested are directly relevant to resolving the Blue Tick Issue, and so necessary in the interest of justice: -

(a)  If records of a SEC-M confirmation email is found, this supports the authenticity of the SEC-M Screenshots.

(b)  Conversely, if the records are such as to exclude the possibility of P having deleted a SEC-M confirmation email, for example by showing records of her deletion of other emails in July 2017, this detracts from the authenticity of the SEC-M Screenshots.

(c)  In this respect, the court had erred at Paragraph 17(a) of the Decision in that Paragraph 1 of the amended Summons (cited in Paragraph 3(a) of the Decision) does cover the situation “where an email has been deleted from the mail trash bin”, in that the confirmation email must have been received in July 2017 before such “hard” deletion (cf. Paragraph 22 of the Decision).

(d)  The court had further erred at Paragraph 17(e) to 17(f) of the Decision in that the Blue Tick Issue is a distinct issue from P’s factual case that she never heard of or used SEC-M.

(e)  P’s burden is not to show that it is decisive of P s overall case or outcome of the trial, but instead that the requested documents assist in the resolution of the Blue Tick Issue (a matter argued exclusively between the experts, without direct evidence from P or D).

(2)  The court had erred at Paragraph 31 of the Decision in holding that 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” in that

(a)  The records requested in Paragraph 1 of the amended Summons (cited in Paragraph 3(a) of the Decision), namely

“Record of any and all email messages received by [email protected] in July 2017”

exist and are likely to be in the possession of Google.

(b)  The court had erred in finding that “whatever data that is available to the account holder would be within the control of him/her” (at Paragraphs 21 and 29 of the Decision) in that, in Rocky Mountain Bank v Google Inc, Google had by way of court filing provided to the Court data about a message which was “auto-deleted and is no longer available to the user”, i.e. more than what is available or within the control of the account holder.

(3)  The court had erred in rejecting Mr Pong’s uncontradicted opinion: -

(a)  Concerning Google’s big data business model on the basis that he is not “an expert on Google’s policy on the retention of emails” (Paragraph 22 of the Decision). Unlike Mr Jeffries, Mr Pong did not speculate on Google’s internal policy on retention of emails. Instead, he pointed out the commercial incentives for international conglomerates such as Google to collect and retain large amounts of data.

(b)  Concerning deletion as “speculation” on the basis of “general knowledge” (Paragraph 22 of the Decision). Deletion in relation to computer files is a technical concept, and what a user experiences as deletion (even “hard delete” (cf. Paragraph 22 of the Decision)) is not equivalent to the disappearance of data from Google's computers.

Both of these matters are within Mr Pong (and Mr Jeffries’s) agreed expertise on digital and forensic investigations. In the absence of positive contradiction by Mr Jeffries, Mr Pong’s opinions on the above matters should be accepted.

(4)  To any extent necessary: -

(a)  The court had erred in rejecting P’s US legal advisors Messrs Kronenberger Rosenfeld, LLP’s uncontradicted opinion that there is no reason to believe Google was unable or unwilling to comply with the subpoenas filed in relation to Gmail records in Optiver Australia Pty. Ltd. & Anor. v. Tibra Trading Pty. No. C 12-80242 EID (PSG), judgment on 23 January 2013.

(b)  The court had erred in giving Mr Jeffries’s opinion (at Paragraph 14(a) and 14(b) of the Decision) any weight in considering the application, in that his opinion was abandoned by D at the hearing in favour of another Google policy annexed to the Skeleton without leave to adduce new evidence. Given such abandonment, Mr Jeffries’s opinion that “Google would unlikely retain records of email which had been deleted 7 years ago in 2017” (Paragraph 14(b) of the Decision) has no basis and should not be given any weight.

Applicable Principles – Leave to Appeal

4.The applicable principles concerning applications for leave to appeal against interlocutory orders pursuant to section 14AA of the High Court Ordinance and Order 59 rule 2B of the Rules of the High Court are well-settled, namely, that the applicant has to show that the intended appeal has a “reasonable prospect of success” or there is “some other reason in the interests of justice” why the appeal should be heard.

5.The Decision was an exercise of discretion as well as a case management decision. As submitted by Mr Bernard Man SC and Mr Jonathan Ng, counsel for D, a case management decision is only subject to appeal in rare circumstances and P faces a “very high hurdle” in trying to overturn it. The Court of Appeal will not interfere unless the judge below has “misunderstood the law or the evidence or the exercise of his discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible”[2].

Ground 1: Error in holding that P “has not shown that it is material, or necessary in the interests of justice”

6.Mr Laurence Li SC together with Mr Jasper Wong appeared for P. It was said that I had erred in paragraph 19 of the Decision in coming to 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.

7.The crux of my decision on the issue of relevance, materiality and necessity lies in the formulation of the request. The presence or the absence of an email or a list of emails do not reach the conclusion sought by P. I refer to my reasoning in paragraphs 17 – 19 of the Decision. I maintain my view that although the evidence sought may be relevant, P has failed to show that the evidence sought would be material or necessary in the interests of justice.

Ground 2: The documents exist and are likely in Google’s Possession

8.In the Decision, I arrived at the conclusion that P had failed to show that the documents do exist and to be likely in Google’s possession[3].

9.It was submitted by Mr Li that I had erred in relying on Google’s standard reply to P and read it as meaning “whatever data that is available to the account holder would be within the control of him/her.” The case of Rocky Mountain Bank v Google was relied upon to show that Google does retain data which has been “auto-deleted and is no longer available to the user”, i.e., it retains more than what is available to, or within the control of, the account holder.

10.Further, it was submitted that “deletion” is not permanent. Even a “hard delete” – deleting the data from the bin would not erase the data. It was further submitted that even if the relevant email has been permanently deleted, there would still be useful data, and that Google need not provide a copy of the email; any record of the email being received in the user’s mailbox, will already help resolve the Blue Tick Issue.

11.However, the main point is that there is no evidence to suggest that the evidence sought would still be in existence or in the possession of Google. Mr Li fairly accepted that no one other than Google could know what the retention policy is. He merely argued that it is possible that Google, being a company that makes its profit from data would have an incentive to keep data. The arguments put forward have already been canvassed at the substantive hearing. Suffice it to say that my views as set out in paragraphs 20 – 31 of the Decision remain unchanged and there is no need to repeat them herein.

12.I maintain my view that P has failed to demonstrate that the evidence sought would still be available, bearing in mind that the relevant email is said to be more than 7 years ago.

Grounds 3 & 4

13.No submissions were made at the hearing on grounds 3 & 4 of the draft Notice of Appeal. In any event, I maintain my view that the area expertise of Mr Pong was not on Google’s retention policy. The US legal adviser’s opinion was also mere speculation. Insofar as it was suggested that I had relied on Mr Jeffries’ opinion in reaching my decision, I refer to paragraphs 20 – 30 of the Decision which set out the bases of my reasoning, which show no reliance on Mr Jeffries’ opinion.

The Costs Variation Summons

14.P’s complaint was that Mr Jeffries (D’s expert) relied on the email retention policy of Google Workspace in his expert evidence, which is clearly inapplicable, as P’s email account is a non-paying account. It was submitted that as the expert evidence of Mr Jeffries was not relied upon at the hearing by counsel, the costs of his expert report should be disallowed and the costs of P’s expert and related costs (total of HK$48,600), insofar as they deal with that part of Mr Jeffries’ evidence, ought to be borne by D.

15.P is essentially asking the court to dissect out only one part of Mr Jeffries’ opinion as being irrelevant and disallow the costs thereto.

16.The general principle in relation to the award of costs is that “costs follow the event”. Here, as D is the successful party in the application, he ought to be entitled to costs unless there are circumstances which the court considers to be sufficient to disallow him costs. I do not understand the position to be if there are parts of the evidence which have not been accepted or relied upon by the court, such costs of the successful party should be disallowed.

17.Here, although I did not rely on that part of Mr Jeffries’ opinion in my Decision, I do not think there was any intention to mislead the court in quoting the policy of Google Workspace.

18.In the present circumstances, I do not think there is sufficient grounds, nor is it appropriate to vary the costs order as suggested by P in the Costs Variation Summons.

Conclusion

19.For the reasons set out above, I am of the view that there is insufficient basis to say that this court was wrong or plainly wrong in exercising its discretion to dismiss the application for a letter of request. The intended appeal has no reasonable prospect of success. Accordingly, the Leave to Appeal Summonses is dismissed. The Costs Variation Summons is also dismissed. Costs of both applications be paid by P to D, to be summarily assessed with a certificate for 2 counsel.

20.The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same.

21.In the absence of any variation of the costs order, D do lodge and serve his statement of costs within 7 days thereof. P do lodge and serve her list of objections to D’s statement of costs within 7 days thereafter for purposes of summary assessment.

22.I thank counsel for their able assistance.

Mr Laurence Li SC leading 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