Info Salons Technology Services (HK) Ltd v. Feng Wenguo, James and Others
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HCA 654/2025 [2026] HKCFI 4667 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 654 OF 2025 _________________ BETWEEN
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_________________ D E C I S I O N _________________ 1.This is the Plaintiff’s application for summary judgment for some of the relief it has claimed in its action against the 1st and 2nd Defendants. The 3rd Defendant is the 2nd Defendant’s company but it is not involved in the present application. Brief background 2.The Plaintiff company provides technology services to the exhibitions and events industry. The 1st Defendant was its employee from 2006 to 2024, having worked initially for a group with which the Plaintiff was related, and later as general manager of the Plaintiff. The 2nd Defendant was the Plaintiff’s employee from 2014 to 2024, and was deputy general manager prior to his departure. 3.On 8 May 2024, the 2nd Defendant gave one month notice of resignation. On 1 August 2024, the 3rd Defendant was incorporated, of which the 2nd Defendant is the sole director and controlling shareholder. It is the Plaintiff’s case that as the 3rd Defendant entered into direct competition with it, the 2nd Defendant was in breach of a 12-month non-solicitation covenant and non-competing covenant in his employment contract. On 25 April 2025, DHCJ Alan Kwong ordered an interlocutory injunction against the 2nd Defendant, effective until 7 June 2025. 4.As for the 1st Defendant, he gave one month notice of resignation on 2 August 2024. It is common ground that he stayed on beyond 1 September 2024 to help with handover of his work. The capacity in which he stayed on and the exact date on which he left are disputed, but the dispute is not relevant to the present application. The 1st Defendant handed over his company computer to his successor on 11 or 12 October 2024, but it is common ground that he continued to communicate with the Plaintiff’s staff on company matters by WeChat until 26 October 2024. 5.As a result of certain incidents in the first quarter of 2025 regarding the 3rd Defendant’s provision of services to a company which had been the Plaintiff’s customer, the Plaintiff’s solicitors issued a letter before action against the Defendants followed by the issue of a writ on 31 March 2025. 6.The Statement of Claim (SOC) was filed in June 2025, followed by the 2nd Defendant and 3rd Defendant’s Defence and Counterclaim in September 2025, the 1st Defendant’s Defence in October 2025, and the Reply and Defence to Counterclaim in November 2025. 7.The causes of action alleged against the 1st and 2nd Defendants in the SOC include breach of contractual duties, breach of confidence, breach of fiduciary duties, and unlawful means conspiracy. These causes of action are based partly on the Plaintiff’s allegations that, before their departure, (1) the 1st Defendant had forwarded some company emails to himself, then deleted the contents of his company computer and email account, and (2) the 2nd Defendant had deleted his company emails, all without back-up (see paras 41.5, 43.3, 44.3, 56.3 SOC). The parties’ respective cases 8.For the purposes of the summary judgment application, it is the Plaintiff’s case against:
9.The Plaintiff seeks (in brief) the following relief:
10.In a nutshell, the 1st Defendant denies that he had forwarded emails to himself. As for deletion of the contents of his company computer and email account, he accepts he did so, but that was not wrongful because:
11.As for the 2nd Defendant, he denies that he had deleted emails from his company email account. Legal principles 12.The principles guiding the court in an application for summary judgment are not disputed. The starting point is that a plaintiff must demonstrate that the defendant has no defence. A defendant only needs to show that there is a triable issue or question, or that for some other reason there ought to be a trial. At an application for summary judgment, the court will not embark on a mini-trial on paper. And if the application relates to only some of the claims in an action, the court would consider whether it is a compliant use of court resources since a trial would still be needed. Discussion Re: the 1st Defendant 13.The Plaintiff’s first allegation was that the 1st Defendant had forwarded emails in his company email account to the same account. This was alleged in the SOC and the affirmation of Wong Chau Wai, the Plaintiff’s director, who said that “it was discovered” that the 1st Defendant had done so between June 2024 and October 2024, and that “it was believed” that he had done so in order to download copies before deletion (SOC para 25, and Wong’s 6th affirmation paras 27(d), 45(a)). 14.However, as Mr Ernest Ng (who appeared with Mr Calvin Ng) for the Plaintiff fairly conceded, there is no evidence supporting this allegation in the “technical investigation” materials exhibited by the Plaintiff. Nor is there any evidence to support the assertion in the Plaintiff’s Skeleton Submissions that the 1st Defendant had forwarded information to his “personal” mailbox (para 15(b)). 15.Notably, the Plaintiff’s allegation was that the 1st Defendant had forwarded emails from his company email account to the same company email account in order to download them. The 1st Defendant challenged this in his affirmation in opposition filed on 26 March 2026 (2nd affirmation para. 36) saying that it is simply not necessary to forward emails to the same email account in order to download them, which seems to accord with common sense. In her reply affirmation filed on 21 May 2026, Ms Wong did not provide any evidence in answer to the point (8th affirmation, para 30). 16.The Plaintiff’s second allegation was that the 1st Defendant had wrongfully deleted the contents of his company computer and email account without having backed them up first. The Plaintiff relies on, among other things, provisions in the Staff Handbook. Both defendants have denied that the Handbook was applicable, but I am prepared to assume for present purposes that it was, as their employment contracts stated that the employee is expected to have read and understood the company staff handbook within a week of joining the company, drawing attention to the executive management any areas not understood. The inference is that the Staff Handbook applied by incorporation. 17.Clause 7.2 of the Staff Handbook revised in January 2023 provided that back-ups of all data files and software “must be taken at frequent, regular intervals and stored in a secure location”. Clause 3.3 also provided that departing employees “need to hand over for the department, other related departments and the personnel department the work and property: 1) Company documents (electronic files included)”. 18.The 1st Defendant says that irrespective of the Staff Handbook, he had in fact backed-up his work files during the course of his employment, and that prior to departure, he had handed over his work files to various staff members and liaised with a WeChat group called “Hong Kong Project Data Organization Group” (English translation) of which Ms Wong was one of 8 members. He said he had deleted his company computer and emails only after such handover. 19.1.It is common ground that the Plaintiff maintained various systems, such as the Ilog System, Infoweb System, Database Management System, Information Management System, T+ System, and the File Server. 19.2.The 1st Defendant says that the Plaintiff’s business records and information are in these systems (for instance, the Ilog system is used for clients’ information and requirements, and the Infoweb and Database Management System for project information), and that he had backed-up his work files in the File Server. 19.3.The Plaintiff says that back-ups of business records would not have been uploaded onto systems other than the File Server, and that the 1st Defendant must have failed to perform back-ups because he had only uploaded 48. 6 MB onto the File Server in 20 years, which Ms Wong says is “unreasonably low” compared with herself or other departing employees. The Plaintiff says this is proof that the 1st Defendant must have failed to back-up all his work files (Wong 8th affirmation para 25(d)). 20.I am satisfied for the following reasons that the 1st Defendant has raised a triable issue as to whether he had backed up his work files prior to deletion. 21.First, there was no evidence from the Plaintiff of any standard operating procedure (SOP) for performing back-ups, such as compliance deadlines, and instructions to store which files in which systems, and no evidence as to if and how such back-ups are logged and stored in the systems. There is no evidence that employees were instructed to preserve permanently all emails and files. Without such evidence, the Plaintiff has not shown when, what or where the 1st Defendant had failed to back-up. Nor was there evidence of any SOP for handover. 22.Secondly, it is of little value in the present application to compare the 1st Defendant’s volume of uploaded materials with that of Ms Wong herself or other departing employees who did not occupy the same position and did not perform the same work as him. 23.1.Thirdly, the 1st Defendant stayed behind after the expiry of his notice of resignation for nearly 2 months. The Plaintiff says that he was engaged as a consultant until 30 September 2024, but that the 1st Defendant accessed his account 63 times after that date. The 1st Defendant says he stayed on until the end of October 2024 to help in the hand over. The court cannot determine this dispute at this stage. However, what is pertinent is that there were frequent contemporaneous messages (text and voice) between the 1st Defendant and the WeChat group which included his subordinates and other staff and Ms Wong, until 26 October 2024. In none of the text messages exhibited did anyone from the Plaintiff express surprise that the 1st Defendant remained in such communication with it, or queried if or how he accessed his account after 30 September 2024. 23.2.Further, the exhibited text messages showed that the 1st Defendant provided files for various projects to other staff members (e.g. Raymond Lam, Jo Chan and Penny Shu) and asked them to upload them onto the File Server. The 1st Defendant says that this explains why some files would not be shown in the File Server as having been uploaded by himself. 23.3.Further it is notable that there was no challenge or complaint or query from anyone in the Plaintiff that any files had not been handed over or that any parts were missing. This was despite a message from the 1st Defendant to Raymond Lam on 15 October 2024 to check first before uploading. 23.4.It is also notable in this regard that the 1st Defendant had returned his company computer on 11 or 12 October 2024, and the Plaintiff alleged that his successor had found on 14 October 2024 that the computer and emails had been “wiped clean”. The 1st Defendant’s successor reported this to Ms Wong (SOC para 37), yet the 1st Defendant was not asked about this, and the WeChat group carried on for nearly 2 weeks thereafter. 24.1.Fourthly, as for deleted files, the 1st Defendant explained that he had deleted files which were inconsequential, or which had been copied to others in the company, or which had previously been stored. A number of examples were quoted in his 2nd affirmation (para.44). 24.2.Moreover, the 1st Defendant explained that during the course of his employment, some clients had requested emails to be deleted, as sometimes confidential information may have been contained in them. This is supported by exhibited materials from some clients, including Reed and Informa. The Plaintiff accepts that some clients did make such requests. The Plaintiff and the 1st Defendant disagree on the number of such clients and whether they were one-off or repeat clients, but that is not a matter to be decided on a summary judgment application. Rather, the point is that the 1st Defendant has shown that some clients did request the deletion of emails he had received, and it cannot be said at this stage that the mere fact of deletion amounts to an admission by him that it was wrongful. 25.Fifthly, the 1st Defendant has also pointed to some aspects (for instance, multiple deletions of the same email, or emails apparently forwarded after deletion) which undermine the Plaintiff’s exhibited activity logs. The Plaintiff has provided some answers to these points, but these aspects show fallacies in the exercise which affects its reliability in a summary judgment application. 26.For all these reasons, I am satisfied that the 1st Defendant has raised a triable issue or question, and that unconditional leave to defend should be given. I shall discuss later in this Decision the alternative submission of Mr Jeff Yau counsel for the 1st Defendant that the application should be dismissed. Re: the 2nd Defendant 27.As for the 2nd Defendant, for the purpose of this application, the Plaintiff alleges only that he had deleted his company emails, which the 2nd Defendant has denied. As Mr Ernest Ng fairly conceded, there is no primary evidence to support this allegation. There is no schedule of deleted emails along the lines of Schedule 1. The exhibit “WCW-25” at p.710 of the Bundle is only an Electronic Data Confirmation Certificate and does not show any records of emails deleted by the 2nd Defendant, cf Ms Wong’s 6th affirmation para.36. 28.The Plaintiff has sought to justify this absence of evidence by saying that that is because the cloud service activity log covers only a rolling period of 180 days. However, according to the Plaintiff’s own case, suspicion of the 2nd Defendant arose on 27 November 2024 (Wong 7th affirmation, para 11), less than 180 days before the 2nd Defendant’s departure on 7 June 2024, so it would still have been able to access his email account to see if he had deleted anything and what he had deleted. 29.1.Notwithstanding that, the Plaintiff has asked the court to make an inference against the 2nd Defendant arising from the following. 29.2.In the interlocutory injunction proceedings against the 2nd Defendant, the Plaintiff says that the 3rd Defendant had “poached” the Plaintiff’s longstanding customer Informa, whose representative is Celine Lau. In his 2nd affirmation filed on 9 February 2026, the 2nd Defendant said “… Celine Lau was never one of the people from Informa Markets with whom I had to deal with in my work at the Plaintiff” (para 22) and “… my work did not involve Celine Lau” (para.24). However, the Plaintiff has in Ms Wong’s 7th reply affirmation filed on 29 April 2026 produced emails passing between the 2nd Defendant and Celine Lau and others in 2018-2019. Having said that, this was 6-7 years before the 2nd Defendant’s affirmation in which he had also said that in any event “… even if there were such Celine Lau emails at all, they would not be just between me and Celine Lau” (para 25). This was borne out by the 2018-2019 emails. 30.In my view, even if the 2nd Defendant may be said to have been “caught out” regarding his denial of any dealings with Celine Lau in the course of his work, that is hardly primary evidence that he had wrongfully deleted emails, of which as Mr Ng conceded there was none. 31.In the circumstances, I am satisfied that there is a triable issue or question whether the 2nd Defendant had deleted emails in his account before his departure, and that unconditional leave to defend should be given to him as well. Dismissal of application? 32.In giving unconditional leave, I am aware that Mr Yau for the 1st Defendant has asked in the alternative for the application to be dismissed. He submitted that the Plaintiff has been “cherry-picking” in seeking summary judgment of the deletion claim, and that the summary judgment application should be dismissed as a trial would not be obviated (Skillsoft Asia Pacific Pty Ltd v Ambow Education Holding Ltd (No. 2) [2016] 1 HKLRD 1052). 33.It is indeed clear from the pleadings that deletion is pleaded as an overt act of the conspiracy cause of action. However, for the conspiracy claim, facts other than deletion would have to be proved (for instance, intention and knowledge), whereas wrongful deletion can be a separate cause of action in the contractual and breach of fiduciary duty claims. The declaratory relief sought in the summary judgment application does not refer to conspiracy. If wrongful deletion were proved, it would not have mattered why it was done (in other words, whether or not it was done in furtherance of the alleged conspiracy). Therefore, in the exercise of my discretion, I do not consider that the application should be dismissed. Order 34. 1.The 1st and 2nd Defendants do have unconditional leave to defend. There will be an order nisi that the costs of the application be costs in the cause. Insofar as further directions (such as for discovery) are required, the parties should proceed before a master. 34. 2.It only remains for me to thank all counsel for their assistance.
Mr Ernest Ng and Mr. Calvin Ng, instructed by Messrs. Alvin Liu & Partners, for the Plaintiff Mr Jeff Yau, instructed by Messrs. Yan Lawyers, for the 1st Defendant Mr Tony Au, instructed by Messrs. Tony Au & Co., for the 2nd and 3rd Defendants |
Cases cited in this judgment
Further hearings and rulings under HCA 654/2025