Csav Group (Hong Kong) Ltd and Another v. Jamshed Safdar

cacv 55/2007

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 55 of 2007

(on appeal from DCCJ NO. 586 of 2006)

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BETWEEN

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Before : Hon Le Pichon JA and Sakhrani J in Court

Date of Hearing : 26 July 2007

Date of Judgment : 26 July 2007

Date of Handing Down Reasons for Judgment: 7 August 2007

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REASONS FOR JUDGMENT

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Hon Le Pichon JA:

1.This was an application for leave to appeal to the Court of Final Appeal from part of the order of this court dated 31 May 2007 under section 22(1)(b) of the Court of Final Appeal Ordinance.  At the hearing, the application was refused.  The reasons appear below.

Background

2.The background appears in the judgment to which reference should be made.  In brief, the defendant was a former employee of the plaintiff, a sea container transport company.  He was the former Head of Marketing.  The action against the defendant was based on the fact that shortly before he left the plaintiff’s employment, the defendant had e-mailed to his personal e-mail address various documents and files belonging to the plaintiffs which the plaintiffs claim to be confidential documents.  The relief sought in the action is for an order for delivery up, an order that the defendant account for the confidential information obtained, an injunction restraining the defendant from using or disclosing the same, an account of profits and damages for breach of contract.

3.HH Judge Chow had made an order for discovery of various classes of documents.  This court allowed an appeal from that order and the plaintiff now seeks leave to appeal from the judgment of this court limited to the first two classes of documents, namely, the hard drive of the defendant’s home personal computer and forensic images of the hard drive and what is referred to as “class 2 documents” in the judgment.

The hard drive

4.The question said to be of great general or public importance is as follows:

“

The scope of the discovery obligation of an employee who unlawfully takes documents belonging to his employer, not by physically removing them but by e-mailing them from his employer’s computer to his personal computer, in circumstances in which the employer contends that the documents are confidential and reasonably believes that the employee has taken the documents with a view to assisting a competitor of the employer.”

5.The subject matter of the discovery under this head is the hard drive of the defendant’s home personal computer.  It is apparent from paragraphs 18 to 21 of the judgment that this court reached the conclusion, having regard to the facts of this case, that relevance had not been established and, further, that discovery of the hard drive is not necessary either for disposing fairly of the action or for saving costs.  It is difficult to see how it can be said that a question of great general or public importance arises.  The applicable principles are clear.  In my view, their application to the facts does not raise a question of great general or public importance.

Class 2 documents

6.The discovery sought is directed at documents belonging to the plaintiff presently or formerly in the defendant’s personal possession during the last six months of the defendant’s employment with the plaintiffs.  The question of great general or public importance was said to be the following:

“	Whether an employee’s duty of discovery in these circumstances is limited to the very documents which the employer knows him to have taken in electronic form or extends to other documents which the employee may have taken from the employer in any other form.”

7.There was no allegation in the pleadings that the defendant had taken documents belonging to the plaintiff away with him.  As stated in paragraph 23 of the judgment, the plaintiff’s case was put squarely on the documents e-mailed from the office computer to the defendant’s personal e-mail address.  In those circumstances, the court considered that the documents were not relevant and that the discovery sought was nothing more than a fishing expedition.  The fact that the plaintiff considers that the applicable principles (which are clear) have been misapplied does not raise any question of great general or public importance.

Hon Sakhrani J:

8.I agree.

Mr Mark Strachan & Mr Douglas Lam, instructed by Messrs Holman Fenwick & Willan, for the Plaintiffs/Applicants

Mr Ashley Burns SC, instructed by Messrs Clyde & Co., for the Defendant/Respondent