Degreeasia Ltd t/a Hong Kong Institute of Continuing Education v. Paules Lee Siu Yuk and Others
Read the full judgment text of HCA 1686/2006 on BabelCite. This High Court CFI judgment was delivered on 25 June 2010.
1. The 1 st plaintiff (“Degreeasia”) is a company incorporated in Hong Kong. At the material time it operated an institution known as Hong Kong Institute of Continuing Education (“HKICE”) (in this judgment, sometimes these two names are used interchangeably).
Cited by 10 cases · Cites 2 cases
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HCA1686/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 1686 OF 2006 ---------------------------
Before : Mr Recorder Shieh, SC in Court Dates of Hearing : 15, 16, 19-23, 27, 28, 30 October and 2 November2009 Date of Judgment : 25 June 2010 ------------------------ J U D G M E N T ------------------------ The parties and personalities involved 1.The 1st plaintiff (“Degreeasia”) is a company incorporated in Hong Kong. At the material time it operated an institution known as Hong Kong Institute of Continuing Education (“HKICE”) (in this judgment, sometimes these two names are used interchangeably). 2.HKICE’s business included offering degree courses for overseas universities to students in Hong Kong. 3.Courses of two such universities are relevant in this action :
4.Mr David Yau (“Mr Yau”) was at all material times the Managing Director of Degreeasia and the main person in charge of the business and operation of Degreeasia. 5.The 1st defendant (“Paules Lee”) was an employee of Degreeasia. By an employment contract dated 25 June 2005 (“the June 2005 contract”) she was employed as an “education consultant”. On 1 September 2005 her employment status was changed to that of a “student services co‑ordinator” by a contract of the same date (“the September 2005 contract”). 6.The June 2005 contract contained the following clause :
7.The September 2005 contract contained the following relevant clauses :
8.Paules Lee’s employment with Degreeasia was terminated by a termination notice dated 10 June 2006. The reason for terminating her employment was, apparently, a dispute with other sales staff of Degreeasia over the use of a classroom. This case is not about the rightness or wrongness of the termination and I mention this purely by way of background. 9.On 6 June 2006 Paules Lee petitioned for her own bankruptcy and a bankruptcy order was made against Paules Lee on 18 July 2006. 10.Paules Lee claimed that after her employment had been terminated by Degreeasia, she entered into an employment contract dated 4 July 2006 with a company known as Advanced Learning Limited (“the July 2006 contract”). Her job title was “receptionist”. The address on the letterhead of Advanced Learning Limited was “2/F Ming Tak Building, 101 Wanchai Road, Hong Kong”. The employment period was stated to be only from 4 July 2006 to 31 August 2006. According to Paules Lee, she was introduced to this job by the 3rd defendant, Suen, as a “part time temporary job” only. Later she left this job but in 2008 she returned to work at Advanced Learning Limited. The nature of her employment, as well as the identity of her employer, is in dispute. This will be dealt with below. 11.In the summer of 2006, she was provided with a name card. She said it was given to her by mistake and that she was not supposed to have a name card as part of her employment. I shall deal with this explanation of hers later in this judgment, but at this introductory stage I would set out the contents of the said name card. 12.It is a name card of an institution called “Institute of Advanced Learning” (the trade name of the 2nd defendant in this case, and not Advanced Learning Limited, the entity whose name appeared on the July 2006 employment contract). It contained her Chinese and English names. She was described as an education consultant. It contained her mobile phone number. It referred to the “In Learning Group”. Four addresses were mentioned :
13.The 2nd defendant (“In Learning”) is a company incorporated in Hong Kong. At the material time it operated an institution known as Institute of Advanced Learning (“IAL”). In this judgment I shall sometimes refer to those two names interchangeably. 14.IAL offered degree courses for overseas universities to students in Hong Kong. One of them was the programme offered by Utah State University (“USU”) in the United States. 15.Dr Richard Wong (“Dr Wong”) was at all material times the Managing Director of In Learning. Advanced Learning Limited (mentioned above as being allegedly the employer of Paules Lee) was also one of his companies. 16.Dr Wong had known Mr Yau since about 1997. Mr Yau was in fact a 50% shareholder of In Learning at the time of its incorporation. For reasons that I need not go into and which are not relevant to the resolution of the issues in this action (and I have not been asked to make precise findings in relation thereto), the relationship between Dr Wong and Mr Yau has deteriorated since about 2002. I only need to say that there existed, and obviously still exists, a lot of “bad blood” between Mr Yau and Dr Wong. 17.The 3rd defendant (“Suen”) was employed by Degreeasia as a marketing manager by a written contract dated 6 May 2003 (“the May 2003 contract”). The May 2003 contract did not contain any restrictive covenants or provisions dealing with use of trade secrets or confidential information during, or after, his employment. 18.There is an unsigned contract dated 1 February 2005 (“the unsigned contract”) which, according to Degreeasia, was intended by it to govern its relationship with Suen. For reasons that are in dispute, it has never been signed by Suen. 19.As will be seen below, there is also an issue as to whether, despite it being unsigned, certain provisions contained therein had become part of the employment contract between Degreeasia and Suen and whether Suen has been in breach thereof. Those provisions are :
20.Suen left the employment of Degreeasia at the end of January 2006. On 27 January 2006 (Friday) he sent an e‑mail to his colleagues stating that it was his last day at work (it also happened to be the day before Chinese New Year’s eve). 21.By a written contract dated 13 March 2006 (“the March 2006 contract”) Suen was employed by IAL as a Program Manager. The letterhead of the contract bore the name of IAL and it stated the Yue Hwa International Building address referred to above. The facts leading to the disputes between the parties and the issues 22.Degreeasia’s pleading has undergone different “authorship”. The allegations and particulars (as well as the persons alleged to have been guilty of certain acts) sometimes do not “gel” together. During the course of the trial I have asked for a document from Degreeasia setting out the areas of factual issues in dispute so as to assist me in understanding the pleaded issues. However, the list of facial issues in dispute handed to me on behalf of Degreeasia does not match with the issues as distilled (doing the best I can) from the pleadings, in that many of Degreeasia’s averments (which are disputed by the defendants) were not reflected there. Unless there is an express abandonment of a plea or an amendment to the pleadings, there is no alternative for me but to adhere to the pleadings, irrespective of the way in which an advocate has chosen to present (or emphasise) his case forensically. I shall therefore deal with the issues that can be crystallized from the pleadings. 23.The complaints of Degreeasia against the defendants are as follows :
24.The responses of the various defendants are :
The issues one by one 25.I now proceed to deal with the issues one by one. Validity of the restrictive clauses and confidentiality clauses 26.Both Paules Lee and Suen had restrictive covenants and confidentiality clauses in their respective contracts of employment (in Suen’s case, I should say “putative contract of employment” because of the dispute over whether the terms of the unsigned contract had become part of his terms of employment). While each case turns on the wording of the particular clause in question, the law governing the validity of such clauses is common to both defendants. 27.In Learning and Suen are legally represented whereas Paules Lee acted in person. Paules Lee is therefore under some handicap in terms of making legal submissions on the validity of the restrictive covenant in her employment contract. However, since part of Degreeasia’s case against In Learning is “derivative” upon making good its case of breach of restrictive covenants against Paules Lee, In Learning has an interest in addressing the issue of Paules Lee’s restrictive covenant as well. Submissions have in fact been made to me by Miss Janine Cheung, counsel for In Learning and Suen, on the validity of Paules Lee’s restrictive covenant. 28.A preliminary point taken by Miss Cheung is that no consideration has been provided by Degreeasia in return for clauses 5 and 6 of the September 2005 contract. The basis of this argument is that the terms of the June 2005 contract (which, it will be recalled, was the contract under which Paules Lee was employed by Degreeasia as an education consultant) and the September 2005 contract were largely identical and the only additional clauses were clauses 5 and 6. Therefore, it is said, no additional consideration has been given by Degreeasia in return for the more onerous post‑employment restraints imposed in the September 2005 contract. 29.I reject this argument. 30.Leaving aside the point that “lack of consideration” is something that has to be positively pleaded by way of defence, the very premise of this argument has not been made out on the facts. The terms of the June 2005 contract and the September 2005 contract were not largely identical. The salary is different: it was HK$8,000 per month under the June 2005 contract and HK$9,000 under the September 2005 contract. Materially, the nature of Paules Lee’s job was (contrary to Miss Cheung’s submissions) not the same under the two contracts. It is Suen’s evidence (which I accept in this regard) that he interviewed Paules Lee when she joined HKICE in 2005. After the busy summer months, he chose some education consultants who had a sense of responsibility and were diligent but who were not good at the work of education consultants and suggested that they should become student services co‑ordinators instead. Paules Lee was one of such education consultants (together with others such as June, Cathy and “Bee”). Whatever may be the reason why Paules Lee changed from being an education consultant to a student services co‑ordinator, the fact is that the job nature was different. Put on a high level of generality, the task of education consultants was to recruit new students whereas that of student services co‑ordinators was to look after students who have already enrolled. This was a variation of her employment which is capable of prejudicing or benefiting either party. It is trite law that a variation of contract of this type generates its own consideration to support the agreement to vary (see Chitty on Contracts (30th ed.) (Vol.1) §3–079 at p.299). In my view, such consideration is also capable of supporting the agreement to include clauses 5 and 6 in the “new deal”. 31.I now turn the substantive arguments on the validity of clauses 5 and 6. 32.The basic rule is that covenants in restraint of trade are unenforceable unless they can be shown to be reasonable in the interests of the parties and in the public interest (see Bridge v Deacons [1984] 1 AC 705 at 713A–B per Lord Fraser of Tullybelton). It is trite that the burden of demonstrating the reasonableness of a covenant is on the party seeking to enforce it, in this case Degreeasia. 33.The law on enforceability of restrictive covenants in an employment contract is later conveniently summarized in Office Angels Ltd v Rainer‑Thomas and O’Connor [1991] IRLR 214. They are as follows :
34.Later in the same judgment, Sir Christopher Slade said (from paragraphs 54 to 56) :
35.Office Angels was subsequently considered in Steiner (UK) Ltd v Spray (1 December 1993, unreported). The case itself concerns hair stylists but parts of the judgment of Hoffman LJ (as Lord Hoffman then was and who, as Mr Hoffman QC, argued Bridge v Deacons on behalf of the respondent, Deacons, in the Privy Council) contain the following observations which are of assistance in general :
36.The authorities of (among others) Office Angels and Steiner as well as the theme about personal influence and loyalty is later picked up in Dawney, Day & Co. Ltd v D’Alphen [1998] ICR 1068 (not a hairdresser case) at 1081 by Robert Walker J (as Lord Walker of Gestingthorpe then was) :
37.As to the criterion on which the courts will judge or assess the reasonableness of a restraint in terms of protecting the employer’s legitimate interest, Godfrey J said in HoWing Cheong & others v Graham Margot & another [1991] 1 HKLR 245 at 249G–I :
38.Degreeasia relied on Waung J’s remarks in BSC Building Material Ltd v Cheung [1998] 2 HKC 425 at 433A to the effect that the law on this subject has developed in a way too heavily in favour of the employee. Quite apart from the fact that it is a question of debate whether the law has truly developed in a way too heavily in favour of the employee (and, like in many cases, judicial utterances could very well have been influenced and coloured by the view the particular tribunal has taken of the “moral turpitude” of the characters involved in the case before it), the short answer is that the law in this area is too well settled and entrenched for me to take the bold step of changing it. In any event Degreeasia had not put forward any alternative formulation of the applicable principles which would take the place of the existing principles. 39.Degreeasia further relied on the decision of Chu J in Beacon College Ltd v Yiu Man Hau Alfred & others [2001] 4 HKC 433 as an example that a restraint of trade of one year in the case of a tutoring college was reasonable. However, quite apart from the fact that comparision of the factual results with other cases is rarely a helpful exercise in this area of the law (because the matter invariably involves the precise terms of the covenant and the evidence adduced before the court of that particular employment and employee—Beacon College was about the employment of teachers and tutors), the actual decision in Beacon College in fact did not contain any discussion or ruling of the reasonableness of any restrictive covenant at all. The decision is therefore of no assistance and is in fact irrelevant. 40.It is well established that if a restrictive covenant cannot be shown by the employer to be reasonable, it will be struck down and will not be enforced unless the offending part can be severed by applying a notional “blue pencil” in removing words. The court cannot and will not re‑write the covenant or contract by substituting what in its view would be a “reasonable” restriction as to time, geographical location or types of work (see Chitty §16–197). If an employer includes an over‑ambitious covenant in its employment contract, he cannot expect that in case the covenant is struck down the court will come to its rescue or assistance. Such an employer cannot be heard to say that the existence of a restrictive covenant in its contract indicates an intention to impose some sort of post‑employment restraint on its employees and therefore the court should somehow give effect to such an intention by imposing a restraint for what the court regards to be (say) a “reasonable period”. 41.I now turn to the facts of this case. 42.I am of the firm view that the restrictive covenants in the case of both Paules Lee and Suen are unenforceable because they do not pass the reasonableness requirement as laid down by the authorities. 43.First I deal with Paules Lee. The restrictive covenant in her case is clause 5 of the September 2005 contract. Clause 5 has two parts. The first part is a covenant against solicitation. The second part is a covenant against employment. I shall first deal with the covenant against employment. 44.Her last position in Degreeasia was student services co‑ordinator. She worked at the front desk of the 7th floor where most of the classrooms were located. She was responsible for class A3 of the Benedictine College programme although sometimes her work required her to deal with students outside class A3. Her work included making photocopies of class materials for teachers and students, taking the daily attendance record of the students, handling the borrowing and returning of library books, chasing the students for tuition and fees for other school activities, tidying up classrooms after class and contacting the students in case there were sudden or ad hoc announcements to be made. 45.I have not lost sight of the fact that the wording of the September 2005 contract can be said to cover work beyond the above tasks and which might include “selling” or “promoting” courses to new students (e.g. ”student recruitment activities”, “attending promotion activities”) and there were references in the contract to “student retention” or “internal referral” bonuses. However, in understanding the contemplated ambit of Paules Lee’s employment, one must have regard to the background to the conclusion of the September 2005 contract. In doing so I bear in mind that the validity of a covenant is to be judged as at the time of its conclusion (see Chitty §16–088) and therefore I would not take into account the fact that in fact Paules Lee has not subsequently been deployed for promotional or recruitment activities and had remained a student services co‑ordinator pure and simple. I would also not take into account the fact that in fact no bonus scheme had subsequently been devised or implemented for Paules Lee. 46.But even so, the background facts (which I am entitled to take into account) are reasonably clear that Paules Lee was “converted” from an education consultant to a student services co‑ordinator because her work as an education was not regarded as satisfactory. While the wording quoted above may arguably contemplate that Degreeasia might deploy her, from time to time, to help out in recruitment activities (education fairs and the like), it is unlikely that the parties would have contemplated that those would be her main tasks or that she could “double up” as an education consultant. After all, her job was re‑titled student services co‑ordinator and a change in the main duties and nature of work must have been contemplated. 47.Viewed in this light, I accept Miss Cheung’s submissions that Paules Lee’s tasks appeared to be administrative in nature. “Administrative” is not a term of art in this context, and I have used this phrase to describe the sort of routine paperwork and liaison work that would invariably have to be done in any education or commercial institution. I use it to draw a contradistinction with an academic member of staff (e.g. a teacher or a tutor) who would be expected to acquire a certain degree of influence over (and command loyalty from) the students (who are the “customers”). 48.The point is really too simple to require elaborate elaboration, and no amount of self‑serving oral evidence from Degreeasia’s witnesses can alter what is actually a common sense conclusion. Students enroll (or decide whether to remain) at an educational institution based on the quality of the teaching staff and teaching materials. They may also do so based on the reputation or standing or quality of the degree or ultimate qualification that would be attained. Many people or staff members in an academic institution would come into regular contact with its students and can strike a good rapport with its students : for example, librarians, amahs, clerical staff, security guards, but students do not base their choice of courses (and do not choose whether to remain with one course or to switch to another) based on their rapport with such persons. 49.On the facts of this case it is stretching the point too much to suggest that someone in the position of Paules Lee (who no doubt had developed a certain rapport with the students to the extent that they had become friends—more on this below) would command the sort of influence and customer loyalty which could amount to Degreeasia’s asset (which may loosely be termed the “goodwill” or “connection” acquired on behalf of Degreeasia) which was protectable by a restrictive covenant in the eyes of the law. 50.Put bluntly, students do not choose to enroll in a course at Degreeasia (or, if they are existing students, decide whether to stay on) because of the efforts of Paules Lee (or someone in her position) and it was as simple as that. 51.In any event, even if Paules Lee can be regarded as someone whose nature of work is such that she could in principle be subject to some post‑employment restraints, I am of the firm view that the restrictions in her employment contract were unreasonable (and Degreeasia has failed to persuade me that they are reasonable). 52.The evidence about the origin of the restrictive covenant was given by Mr Yau. Before I discuss his evidence, I would comment on his evidence generally. He gave me the impression as someone who was aware of the primary factual disputes in this case only in very broad brush terms. While he could testify directly about the origin of the restrictive covenants, he could not assist in a lot of the primary facts relevant to the individual allegations in this case. Much of what he said on those matters is hearsay. He has probably been put forward as a witness because he is “the boss” and had to be seen to be leading the team in the litigation. 53.According to Mr Yau, at the earlier stage (e.g. in 2003 when Suen first joined Degreeasia) there were no restrictive covenants in the employment contracts of Degreeasia because the business was young and not strong enough to enforce such provisions. As the business grew he had conversations with legal advisors and he understood the importance of protecting the business’s assets. There was also a suggestion by him that he was alerted to the significance or importance of such clauses because one of In Learning’s former employee Sally Cheng (who later joined Degreeasia—more about this below) had been sued by In Learning on the basis (among other things) of a restrictive covenant in her contract (Mr Yau decided to help her out and the case was eventually settled—see below). 54.According to Josephine Choi Ka Ling (“Choi”), a director of Degreeasia, the period of restraint in the restrictive covenants was decided by Mr Yau. As to the types of activities to be restrained by the restrictive covenant, according to Choi it was based on legal advice but she did not know who had spoken to the lawyers. 55.All the above, however, went nowhere towards providing any positive justification for the contents of the restrictive covenants or addressing the criterion laid down by Godfrey J in Ho Wai Cheong at 249H–I. On the evidence, little training was required to perform the task of Paules Lee. The items of work in question are not nuclear science, and purely as a matter of common sense (and even without the need for positive evidence as to the period of training required) the training period could only be in the region of a few months. That is in fact not inconsistent with some of the evidence given at trial. On no view can one say that one needed one year to train up someone to take the place of Paules Lee. Degreeasia has adduced no evidence to this effect. The point can readily be tested by the fact that Paules Lee only started her role as student services co‑ordinator in September 2005 (when Lam Yiu and her friends in class A3 started). She was fired in June 2006, less than a year after commencement of her work as student services co‑ordinator (and less than a year since she had first known Lam Yiu and her friends). On Degreeasia’s own case Paules Lee must have acquired her influence over (and won the loyalty of) the students within less than a year. 56.Nor, even if one were minded to treat Lord Wilberforce’s test in Stenhouse (cited by Godfrey J in Ho Wai Cheong at 249G) as a separate and slightly different test from that propounded by Godfrey J (and I do not think that it was really that different), did Degreeasia’s evidence provide any basis for finding that the restraints were reasonable on a “broad and commonsense view”, having informed oneself as fully as one can “of the facts and circumstances relating to the employer’s business, the nature of the employer’s interest to be protected, and the likely effect of this on solicitation” (per Lord Wilberforce at 402D–E). 57.Even if (contrary to my earlier finding) Paules Lee is to be regarded as having the sort of connection with or influence over the students as to render it legitimate to subject her to a restrictive covenant, the fact remains that any such connection or influence would be extremely flimsy and weak. A one year‑restraint is, on any view, too long. 58.The coverage of the covenant is also unreasonable. I have reminded myself of the caution (see Chitty §16–104) that “if a clause is valid in all ordinary circumstances which can have been contemplated by the parties, it is equally valid notwithstanding that it might cover circumstances which are so ‘extravagant’, ‘fantastical’, ‘unlikely or improbable’ that they must have been entirely outside the contemplation of the parties”. Even then, I find that the wording of the clause to be overly restrictive so that to give effect to it (without giving any “extravagant”, “fantastical” or “unlikely or improbable” construction) would substantially deprive Paules Lee’s ability to earn a living in a way which is wholly disproportionate to any legitimate interest of Degreeasia. 59.I have already set out the wording of Paules Lee’s covenant against employment. It covered (materially) any consultancy position (salaried or non‑salaried) to any relevant company, entity, association or organization in the education, training and development “or whatsoever industry”. “Or whatsoever industry” is plainly too wide but even if it is severed off (or “blue‑pencilled”), the remainder is still too wide. “Consultancy” is not defined. But even assuming that “consultancy” is intended to be limited to work similar to “education consultants” within Degreeasia (i.e. introduction of courses to, and recruitment of, new students), the words “education, training & development … industry” could potentially cover industries or institutions or courses or clientele which had nothing to do with that part of Degreeasia’s business with which Paules Lee had been involved and which Degreeasia can have no legitimate interest in preventing Paules Lee from working for. 60.That is not the end of the matter in Paules Lee’s case because there is still the first part of clause 5, namely the covenant against solicitation. 61.As a matter of principle, the doctrine against restraint of trade applies to total and partial restraints (see e.g. Chitty §16–080). In Stenhouse, for example, clause 4 of the contract in question (see 399A–B) is a covenant against solicitation and the Privy Council was of the view that the clause was no doubt in restraint of trade (400D). The law on restraint of trade is therefore still engaged and Degreeasia therefore faces the burden of having to establish reasonableness. 62.In particular, Degreeasia still needs to show that the nature of Paules Lee’s employment was such that a post‑employment restraint could legitimately be imposed on her. On this, the discussion above about the nature of her employment (and the short point that students decide to enroll in or stay with Degreeasia’s courses not because of Paules Lee’s skills as a student services co‑ordinator) applies equally in the context of the validity of the covenant against solicitation. 63.In any event, even if Degreeasia had anything “protectable” by way of connections or loyalty cultivated by Paules Lee, the ambit of the covenant against solicitation is (although narrower than the covenant against employment) still too wide. 64.First of all, in terms of the timing of the restraint it was one year. The same discussion above as to the unreasonableness of a one year restraint applies equally here. 65.Second, under the covenant Paules Lee was restrained from enticing away any client of Degreeasia or any person with whom she has had contact during her employment by Degreeasia. Even if one were just to confine oneself to “client … with whom [she has] had contact during [her] employment” (assuming for the sake of argument that the words “with whom she has had contact during her employment” qualify the earlier word “client” as well), she could potentially be precluded from enticing a client of Degreeasia with whom she has only had cursory contact during her employment. 66.The possibility is not fanciful because she worked on the 7th floor where the front desk was, and she must have come into contact with many clients of Degreeasia who were not within her main sphere of responsibility. I cannot re‑write the contract for Degreeasia to limit the clause to students of class A3 only (assuming—and I am not deciding this—that class A3 would otherwise be a reasonable sphere of restraint). As I said, it is up to the employer to devise an appropriate form of wording to amount to a reasonable form of restraint. He cannot expect the court to do the work for it. 67.Nor is it relevant that Dr Wong’s company had once sued Sally Cheng on the basis of Sally Cheng’s restrictive covenant in her contract. Dr Wong may or may not be right in that other case. Each case must be judged on its own merits. In fact that litigation was later settled without any term concerning restraint of trade (see below). 68.I now turn to the restrictive covenants in Suen’s case. In his case there is an antecedent issue as to whether the relevant clauses had even been incorporated as part of his employment contract with Degreeasia. 69.It will be recalled that the relevant clauses are contained in the unsigned contract dated 1 February 2005. The parties are not in dispute that Suen had not signed the unsigned contract. Degreeasia therefore must show that the relevant clauses had been incorporated. 70.Degreeasia’s pleading is not clear as to how the clauses had been incorporated into Suen’s employment contract. 71.According to Choi’s witness statement (paragraphs 27–31), after the restrictive covenants had been introduced into Degreeasia’s employment contracts, Suen would be explaining the new terms (including the restrictive covenants) to his subordinates and she had explained the contents of the unsigned contract to him. Suen had also tried to clarify the new commission scheme with her (because the unsigned contract introduced a new commission scheme) and he had been paid in accordance with the new commission scheme. Paragraph 31 of her witness statement boldly asserts :
72.But she did not say how Suen had agreed. 73.The parties’ oral evidence on this topic can be summarized as follows :
74.The evidence surrounding the lack of signature on the unsigned contract is extremely unsatisfactory on both sides. On Degreeasia’s part, there was no clear, firm evidence that somehow Suen had orally agreed to be bound by the provisions of the unsigned contract despite the lack of signature. 75.Choi’s evidence is rather nebulous and, at times, wishy washy. At times it was rather obvious that she was saying what she thought should be the case, rather than what she recalled to be what actually happened as a matter of primary fact. At one stage (as I have recounted above) she resorted to the notion of a practice, or custom, in the trade. Leaving aside the fact that “trade custom” has not been pleaded as part of Degreeasia’s case, I am not inclined to accept an off‑the‑cuff, self‑serving remark by Choi as sufficient evidence of a trade custom. 76.Choi’s evidence is in any event insufficient to persuade me that Suen had, by what he had (or had not) said, agreed to be bound by clauses 5 and 6. In fact any suggestion that Suen had expressly said anything to agree to clauses 5 and 6 runs contrary to the plain fact that he had not signed back the unsigned contract. According to Choi she had chased Suen but every time he just smiled and said that he had forgotten. I reject such evidence. Not only was it not foreshadowed in her witness statement, had she regarded it as sufficiently important to chase up on his signature, I find it difficult to see why she could not just ask him to sign back the document on the spot. In any event even if she had truly chased him up as she had described, the undeniable fact is that he had not signed back the document to indicate his willingness to be bound. I do not think that by saying “I had forgotten” (if he did say this) Suen can be taken to mean that he had forgotten to sign it as a physical piece of paper but he was otherwise agreeing to be bound by the contents. It has in any event not been so argued or pleaded and, for the avoidance of doubt, I reject such an argument. 77.Mr Yau’s evidence is of no use in this regard because at most he could say that Suen had not discussed his concerns over clauses 5 and 6 with him. He did not say that Suen agreed with him to be bound. 78.On the other hand, I do not accept Suen’s evidence that he had expressly and orally agreed with Yau that clauses 5 and 6 would not apply to him. Specifically I reject his evidence about the alleged conversation in Beijing. It had not been foreshadowed in his witness statement. Mr Yau’s position (as stated to Suen during Suen’s cross‑examination) was that there was indeed a Beijing trip but it was a relaxing trip and not a business trip. The crux of the matter is, however, that irrespective of how one characterizes the trip, had there been a conversation during such a trip of the nature as Suen alleged, I would have expected him to mention it to his legal advisors and foreshadowed it in one of his witness statements. 79.Under cross‑examination he said that he only remembered the Beijing conversation after commencement of trial. I reject that too. I can understand that sometimes people could genuinely forget something when preparing witness statements at an earlier stage, and then their memory could be prompted or brought back by something which triggered his memory. But Suen had not referred to anything of this sort. I regard his evidence on point as a misguided attempt to embellish his case that he was not bound by clauses 5 and 6. 80.Miss Cheung submitted that Suen did say at §5 of his witness statement dated 30 October 2007 that Yau had told him that the new employment contract would not apply to him. This submission was made in an attempt to show that the evidence about the Beijing conversation was not such a “completely new case”, but could be regarded as providing some flesh to a case already stated in his witness statement. I reject such an argument. If the content of §5 of his said witness statement was actually intended by Suen to refer to the Beijing conversation I fail see why he could not have easily provided the time and place of the conversation (as one should do when describing an oral agreement in a witness statement : one does not just state blandly that there had been an agreement without providing some detail to inform the other side of the nature of the occasion in question). The existence of §5 of his 30 October 2007 witness statement does not affect my rejection of Suen’s evidence in this regard. 81.In fact I go further. I reject §5 of his 30 October 2007 witness statement. The absence of details in that paragraph as to the time and place of the alleged conversation seriously affected its credibility. Furthermore, having gone through the process of revising the written contracts of its staff to include provisions such as clauses 5 and 6, I find it inherently unlikely that Mr Yau would have positively agreed—when asked—to exempt a member of staff (such as Suen) from its coverage. 82.So one is left with a situation where I have rejected the evidence and argument of both parties on the issue of whether anything has been positively said or done to bind (or not bind) Suen to the unsigned contract. I do not regard there to be anything odd about such a state of affairs. It just means that no one could prove any specific conversation or agreement about whether the unsigned contract was binding. In real life people do not always seek to close every documentary gap in their relationship by pressing for things to be done or for an unsigned document to be signed back. Very often people allow things to “drift” without positively seeking to press an issue (or “rocking the boat” or upsetting a working relationship which was otherwise proceeding without problem). Sooner or later people’s attention turned elsewhere and the matter was just not followed up. 83.The present case, I believe, is a case where Suen had, for his own reasons (whatever they may be—and I should add that I do not believe Suen’s reason about “Ms” instead of “Mr” : that is too trivial a mistake) decided that he would not sign it. Degreeasia, on the other hand, was well aware of the absence of signature by Suen and was content to proceed on the basis. In such a state of affairs one resorts to the “default” position under the law, namely that it is for Degreeasia to demonstrate that Suen had become bound by the provisions of the unsigned contract. I find that Degreeasia had failed to do so. Even if (and I do not need to so find) people within Degreeasia had genuinely believed that Suen was bound by the unsigned contract, such belief is legally speaking irrelevant. If they did indeed so believe, that in law they were wrong in holding such a belief. 84.There is one further point that I wish to deal with. In the course of evidence the point was made that Suen has been receiving commission payments in accordance with the rate provided by the “Main Terms and Conditions of Employment” of 1 February 2005. However, this does not mean that the provisions of clauses 5 and 6 have been incorporated as part of the contract between Suen and Degreeasia. The payment of commission to Suen (and his acceptance of the same) in accordance with the “Main Terms” at most meant that those terms about commission had been incorporated by conduct as part of the parties’ contract. There is nothing to show that the parties have acted so as to incorporate clauses 5 and 6 (contained in the unsigned contract) by conduct as well. 85.Lastly, even if (contrary to my holding above) clauses 5 and 6 have been incorporated as part of Suen’s employment contract with Degreeasia, the validity of clause 5 still has to be subject to the same analysis under the restraint of trade principles discussed above in the context of Paules Lee. 86.In this connection, the nature of Suen’s employment is different from that of Paules Lee’s. Suen was responsible for getting in new students. He was in the position of a sales person. But this does not mean that it is any easier for Degreeasia to justify the sort of restraints (be it in the nature of covenant against employment, or covenant against solicitation) contained in clause 5. I repeat what I have said above as to the sort of factors which a customer (or a student) would consider when deciding whether to enroll with one institution rather than another. On the evidence, I reject the suggestion that Suen, a sales officer (which is really what an education consultant was), could command the sort of loyalty from or influence over students so as to confer a protectable asset upon Degreeasia (justifying the imposition of a covenant against employment or covenant against solicitation). 87.In any event, even if (contrary to my ruling above) some sort of protection against solicitation or employment is regarded as acceptable, Degreeasia has failed to produce any evidence to demonstrate the reasonableness of a duration of one year. Suen suggested in his evidence that he would accept six months as a reasonable period. He is not a lawyer and I am not bound by what he says or thinks to be a reasonable period. But even if six months is a reasonable period, the contractual restriction is longer than six months. In any event, the burden is not on Suen to suggest a reasonable period or to show the unreasonableness of the contractual period of restraint; the burden is on Degreeasia and Degreeasia has not even attempted to address the issue of duration by any evidence. 88.Likewise Degreeasia has not attempted to justify the ambit of the restrictions in clause 5. The covenant against solicitation in clause 5 restrained Suen from enticing anyone in the habit of dealing with Degreeasia and with whom he has had contact during his employment with Degreeasia. Like the covenant in Paules Lee’s case, this would potentially catch persons with whom Suen has just had cursory contact during his employment but over whom he has not acquired any influence. The covenant against employment prohibited employment as a consultant or agent in any company etc in the education or training and development business in Hong Kong. For reasons similar to those given in Paules Lee’s case, I view this as too wide. 89.If I am right in the above, then there is no operative covenant against (i) employment and (ii) solicitation in the employment contracts of both Paules Lee and Suen. This means that after the termination of their employment with Degreeasia, they were free to be employed by other competitors. In the course of doing so, they were free to solicit clients of their former employer with a view to persuading them to switch to the new employer (provided that in doing so they do not infringe the law relating to confidential information or trade secrets, which I shall discuss below). There is nothing startling about the fact that an ex‑employee can compete, or solicit customers of an ex‑employer. Hong Kong is a small and competitive society. It strives on competition. Case law (in Hong Kong and, I should add, in England over a long period and so it is not a new invention by me) has moved towards a particular legal policy the effect of which is to put the burden on an employer to justify restraints. Of course there can still be legitimate restraint of trade clauses. But Degreeasia has not proved that its clauses are valid. 90.There are, however, consequential issues which I still need to deal with :
91.In the context of the former (i.e. factual breach of the restrictive covenants), the allegation is that both Suen and Paules Lee had, after the termination of her employment with Degreeasia, become employed by In Learning and enticed away students (consisting of Lam Yiu, Lam Chi Wai and others) who were enrolled with Degreeasia’s Benedictine College programme. 92.In the context of the latter (i.e. misuse of trade secret/confidential information), the allegation is that while Paules Lee was still employed by Degreeasia she had compiled or duplicated a list containing information and particulars about students including their names, contacts, telephone numbers and she had kept it for use when she moved to work for In Learning. 93.I shall deal with these two issues in turn. Factually, were Paules Lee and Suen in breach of restrictive covenants 94.Factually there cannot be any dispute that both Paules Lee and Suen became employed by In Learning within one year of termination of their respective employment contracts. In Suen’s case he was employed as an education consultant. Therefore if clause 5 of the unsigned contract had been part of his employment contract with Degreeasia, there cannot be any argument that he had been in breach of the covenant against employment. 95.Also, even on his own evidence he had been responsible for seeing Lam Yiu and her group (and explaining In Learning’s courses to them). I regard such conduct to be a form of solicitation and enticing because he was trying to get the students interested and to switch over to IAL’s courses. 96.In the case of Paules Lee the situation is slightly more complicated. While there is no dispute that she commenced employment with one of Dr Wong’s companies shortly after the termination of her employment by Degreeasia, there is a dispute as to the identity of her employer and the nature of her employment. The covenant against employment in clause 5 of the September 2006 contract only restrained her from being employed in any “consultancy position”. On her case, she was only employed as a receptionist (and only on a part time and temporary basis). The identity of her employer is relevant because if she was employed by Advanced Learning Limited and not In Learning, then it can be said that by suing In Learning (in the capacity as Paulas Lee’s new employer), Degreeasia had sued the wrong entity. 97.In this regard, Tenny Lai (Degreeasia’s financial controller) explained that her colleagues Sarah Burton and Choi had conducted an investigation into loss of students for the Benedictine College programme and that Sarah Burton had told her that Paules Lee had gone to work for In Learning. 98.Tenny Lai then asked a girl called Carrie, who was the girlfriend of a summer worker at Degreeasia, to go to In Learning’s Wanchai office to see whether Paules Lee was indeed working there. Carrie subsequently informed Tenny Lai that she went to In Learning’s premises in Wanchai and obtained Paules Lee’s namecard. Carrie gave the namecard to Tenny Lai. When she was seeing Paules Lee, Carrie told Paules Lee that she (i.e. Carrie) had not yet decided on whether she should enroll in the Benedictine College programme or any other programme, whereupon Paules Lee told Carrie that the Benedictine College programme was not good and that a lot of Benedictine College students had switched over because the school’s (meaning HKICE) management was bad. 99.I now turn to Paules Lee’s explanation. 100.As to the identity of her employer and the nature of her employment, in her first witness statement dated 19 December 2007 Paules Lee said that she was employed by IAL (and she did not mention Advanced Learning Limited). In her 2nd witness statement dated 28 September 2009 she stated her employer to be Advanced Learning Limited. She explained that it was because at the time when she prepared for her 1st witness statement she was very confused. She did not read the July 2006 contract before preparing for her 1st witness statement. From time to time in her evidence she said that she did not pay attention to the names of companies (I take her to mean that she would not pay attention to names of limited companies—as opposed to the name of the “business” that he worked for). When she was at work and if she was asked whom she worked for she would say the Chinese name of IAL (香港專上教育學院) because this name appeared on the nameplate at the Tai Sang premises. Even though the July 2006 contract contained an address at the Ming Tak Building, she did not work there, but worked at the reception desk on 3/F Tai Sang Commercial Building. According to Dr Wong, the July 2006 contract was drafted by his partner, Elly Tang. 101.Paules Lee does not dispute that she had been given a namecard or that she had given a namecard to Carrie. Her explanation was that the namecards were supplied to her by her employer by mistake because she was only employed as a temporary receptionist and she was not supposed to have namecards. She did not care too much about this and she simply placed the namecards in the drawer at the reception counter. 102.As to the circumstances under which she came to hand out her name card to Carrie, she recalled that on the day in question Carrie went up to the place where she worked and made inquiries about courses. At that time all the education consultants were busy and Paules Lee asked her whether she had made an appointment and told her that if she had not made any appointments then she had to wait for a long time. She gave a few brochures to Carrie and asked her to read them at home, and to return again if she had any questions. Carrie refused to leave, and she asked Paules Lee for a namecard. Paules Lee told her that she was not a consultant and there was no point trying to find her. Carrie persisted for about ¾ hours and eventually Paules Lee “gave in” and handed a namecard to Carrie because she just wanted Carrie to leave. 103.In support of her evidence that the supply of namecards to her was a mistake, Paules Lee said that had she been genuinely employed as an education consultant then she would be fearful of being sued and she would then have changed her name. She gave two examples of people changing their names when they switched from a “Mr Yau company” to a “Dr Wong company” (or vice versa) : Vanora Au was called Vanora when she was at IAL but she was called Ivy when she worked for HKICE; Sally Cheng was called Sally when she worked at IAL (see her employment contract dated 22 September 2003) and she was called Jasmine when she worked at HKICE (see e.g. her namecard at HKICE). She also said that she would not want her mobile number to be on the namecard because she would not want to be called up late at night (in her words she would be worried about receiving “午夜凶鈴”). 104.Carrie had not been called as a witness and there was no evidence as to whether any steps had been taken to even attempt to obtain a witness statement from her. 105.According to Dr Wong, the namecards were mistakenly ordered by a staff member in Tsimshatsui called Sunday. However, Sunday has not been called to give evidence (the indication is that Sunday was still employed by one of Dr Wong’s companies at the time when the issue about the name card was brought up by Degreeasia in this action because Dr Wong said that after he had seen Degreeasia’s witness statement about the namecard he had caused inquiries to be made and eventually he managed to speak to Sunday, whose answer as “Is that so?” and “I don’t know”). 106.Upon a consideration of the evidence on this topic, I have come to the firm view that the namecard was not a mistake and that she was indeed employed as a consultant. Though Carrie has not been called, it has not been disputed by Paules Lee that she did hand out a copy of the name card. The absence of Carrie meant that there is no one to contradict Paules Lee’s evidence as to the circumstances under which the name card came to be handed out. The unexplained failure to call Carrie could also afford grounds for drawing an adverse inference against Degreeasia (who bears the burden). However, these are not rigid rules. The court is not bound to believe Paules Lee. The court is not bound to draw an adverse inference from the failure to call Carrie. The court is entitled to look at the totality of the evidence as well as the inherent probabilities of the evidence to decide whether to accept the uncontradicted evidence of a witness. 107.In terms of the credibility of Paules Lee, first the evidence about the “mistake” was unsatisfactory. I am not talking about mistakes in general—of course mistakes in anything can be made—I am talkingabout the mistake in the present case where namecards were printed for a temporary receptionist (who was not supposed to have namecards). Sunday has not been called, and I do not have any evidence as to whether the mistake was due to (say) (i) an error in communication to her (in which case I would need to know who was responsible for “miscommunicating” the matter to Sunday and what exactly it was that had been “miscommunicated”), or (ii) a misunderstanding on her part (in which case I would need to know what wording in the instructions had led to her misunderstanding). This is not about adverse inference; this is simply a case where In Learning has not even produced evidence of the requisite quality to explain what it claims to be a mistake. 108.I also find Paules Lee’s evidence as to the circumstances of her handing out the namecard incredible. Put shortly, however much she was pestered by Carrie (who, according to Paules Lee, was almost making a nuisance of herself in the office), if all that Carrie had wanted to obtain was some means of contacting her, it would have been easy for her to write down her name on a piece of paper and to add the number of the general line. For someone to insist on getting a “namecard” from Paules Lee (who on her own case was not supposed to have namecards) would have been odd in the extreme, and Paules Lee could simply have insisted that she did not have one. 109.I am also extremely skeptical about the July 2006 contract produced as evidence of Paules Lee’s employment relationship with Advanced Learning Limited. Insofar as it is necessary, I refuse to find that it was a document which genuinely reflected the nature of Paules Lee’s employment. I find that she was in fact employed by In Learning (which operated IAL). The name card (which is found to be good evidence as to her employment status) mentioned the name of IAL. The period of employment was stated to be from 4 July 2006 to 31 August 2006 (a little more than a month) but there are many parts of the contract which did not tie in or make sense with this period of employment at all, such as the references to probation and annual leave. 110.All that Dr Wong could say in response was that if it had been a sham it would not have contained so many mistakes. This is similar to the argument sometimes put forward to the effect that had someone deliberately set out to commit a wrongdoing he would have been more careful and not “left so many marks” so as to be caught out. But there is a limit to how far a point like this can be taken, because if taken to a logical extreme it would be open to everyone whose wrongdoing was “caught out”. He was shifty and evasive and I do not think much of Dr Wong’s answer. And apart from his evidence, there really is no evidence to explain the contents of the contract. The responsibility of drafting the contract was said by Dr Wong to be Elly Tang, who has not been called as a witness. 111.There is one more unsatisfactory aspect about the written contract: Dr Wong had said that at the time Paules Lee was employed, his schools were expanding. In that case one would have expected recruitment of long term staff rather than temporary staff. He was asked why, despite the expansion plans, Paules Lee was still only employed on a temporary basis. After a few false starts in attempting to answer the question, he shifted the responsibility to Elly Tang again, saying that he did not know what was in the mind of Elly Tang. 112.Lastly (though I do not need this factor in coming to my conclusion above, this factor serves to reinforce my conclusion), I am unimpressed by Paules Lee’s manner in explaining the incident. One can detect a notable change in the tone and manner of her evidence when she came to this part of her testimony. While in some parts of her evidence she was reasonably clear and articulate, when she came to explain the namecard (in terms of how it came to be printed by mistake and how she came to give it out to Carrie), her manner of giving evidence changed conspicuously. She began to give her evidence in a very fast, unclear and shifty manner. I had the distinct impression that she was trying to bamboozle through her evidence so that anyone listening to her evidence would not have the chance to slow down, pause and reflect on whether her evidence made sense. This reflects adversely on this part of her evidence. 113.I therefore find that the nature of Paules Lee’s employment was as an education consultant and that her true employer at that time was In Learning, the proprietor of IAL whose name appeared on her name card. Had clause 5 of the September 2005 contract been valid, she would have been in breach of the covenant against employment contained therein. I am able to come to this conclusion without having to rule on such issues (raised in cross‑examination) as whether the initials “PL” on the receipts to Lam Yiu and Lam Chi Wai stood for “Paules Lee” (as Degreeasia contended) or “Project leader”; or the intricate issues about the use of the various addresses used by entities owned or operated by Dr Wong. Cross‑examination on those issues had been inconclusive. I also find that In Learning, through Dr Wong, was aware of the existence of clauses 5 and 6 in the September 2005 contract. 114.But I do not think that I have sufficient evidence to find that Paules Lee had (as Tenny Lai described what Carrie told her) “badmouthed” HKICE’s management in front of Carrie. Carrie has not been called and the hearsay evidence is too flimsy and uncorroborated to be safely acted upon. Did Paules Lee solicit or entice Lam Yiu and her friends and did she utilize any confidential information or trade secrets in doing so? 115.I now turn to the case of solicitation against Paules Lee. I have put this under a separate heading because this should be viewed against the bigger picture of the argument about misuse of trade secret/confidential information because they involve the same underlying factual allegations. 116.Before I deal with the factual allegations I would first discuss the relevant law about confidential information and trade secrets in an employment context, because this would set the scene for the way I deal with the various issues under this section. 117.The law in this area is almost too trite to require elaboration. The modern starting point is Faccenda Chicken v Fowler the first instance decision of which is reported at [1984] ICR 589. 118.According to Goulding J, information acquired during employment can fall within the following three categories (598F–600D) :
119.Goulding J’s decision was upheld on appeal ([1987] 1 Ch 117). The principles were re‑stated as follows (135G–138G) :
120.The Court of Appeal, however, disagreed with Goulding J that an employer can restrain the use of information in his second category (namely confidential information) by means of a restrictive covenant. A restrictive covenant will not be enforced unless it is reasonably necessary to protect a trade secret or to prevent some personal influence over customers being abused in order to entice them away, referring to Cross J’s judgement in Printers & Finishers Ltd v Holloway [1965] 1 WLR 1 at 6 as to the way in which an employer can protect himself. 121.The Court of Appeal’s views on the use of a suitably worded restrictive covenant have been questioned by Scott LJ in Balston Ltd v Headlines Filters Ltd [1987] FSR 330 at 347–348 (see also Wright v Gasweld Pty Ltd [1991] IPR 481). 122.However, the view has been expressed that there might not be any difference between the reasoning of Goulding J (in Faccenda at first instance) and Cross J (in Printers, cited by the Court of Appeal), in that both Goulding J and Cross J had in mind the sort of covenants which restrict an ex‑employee from working for a competitor and that such covenants, if not in unreasonable restraint of trade, would be enforceable—see Bingham LJ in Lancashire Fires Limited v SA Lyons Limited [1996] FSR 629 at 666–667. 123.I would respectfully agree. Insofar as the Court of Appeal in Faccenda might have thought that Goulding J was suggesting that an employer could restrain an employee from using confidential information (post‑employment) by using a restrictive covenant which targets the confidential information as such, I do not believe that this was what Goulding J meant at all. In fact from the judgment of Goulding J at 599F–G (where he cited from Bennett J’s judgment in United Indigo Chemical Co. Ltd v Robinson (1931) 49 RPC 178) it is readily apparent that Goulding J was in fact agreeing that one cannot restrain use of confidential information (post‑employment) by the use of an express contractual term. What he was saying (and this is entirely in line with Cross J in Printers and the Court of Appeal in Faccenda) was that an employer was entitled to protect himself against unfair use of personal connections/influences by a suitably worded restrictive covenant against working for particular persons (or, I would add, in particular localities and within particular timeframes), which might then have the effect of protecting confidential information without targeting such information as such. 124.During closing submissions Miss Cheung at one stage was inclined to concede that as a matter of law, even for information within the “confidential” category, it was open to an employer restrain its use by a restrictive covenant. I drew her attention to the passages in the judgments of Goulding J, in the Court of Appeal and in Lancashire (all of which are in the parties’ list of authorities before me). I asked her whether she wished to maintain her concession (and I am in any event not bound by a concession which I regard to be wrong in law). She indicated that she could address the matter in writing. I then gave the parties liberty to address me on this issue within a particular timeframe after 2 November 2009. No additional submissions had been filed by the parties by the deadline. I have therefore already given the parties a fair opportunity to address me on the points I mentioned to them. In any event, the burden is on Degreeasia to persuade me that it is permissible to restrain confidential information as such, after employment, and nothing in Mr Chu’s opening and closing written submissions (both delivered before Miss Cheung’s attempted concession) or his oral submissions (addressed after I had queried Miss Cheung’s attempted concession) could successfully persuade me. 125.I understand the combined effect of the first instance and Court of Appeal decisions in Faccenda Chicken to be as follows :
126.With these principles in mind, I now turn to the competing factual cases :
127.Analytically the issues interlink in the following manner :
Whether Paules Lee misappropriated or copied any confidential students list 128.A good deal of evidence has been led on the information system at Degreeasia in relation to the storing of students information. Specifically, there was a lot of debate as to the way in which confidential data of Degreeasia’s students had been stored in a special database, whether a password was needed to access such a database and whether Paules Lee had access to such information by virtue of her being a student services co‑ordinator. Paules Lee denies that she had any password to enable her to access the confidential database of agreement. 129.For reasons that I shall explain in detail later, very little turns on such evidence because :
130.In terms of evidence about the database within Degreeasia, at first a large number of jargons and loose phrases were liberally sprinkled in the evidence but at the end of the day, Degreeasia’s case was explained by Josephine Choi as follows :
131.Paules Lee says that she worked on the 7th floor with another student services co‑ordinator called Mabel. Other staff and student services co‑ordinators worked on the 6th floor and these included Snowy Lai, Josephine Choi, June, Bee, Cathy, Margaret and Huseina. She shared a computer with Mabel on the 7th floor. She accepts that she and Mabel had a password which enabled them to switch on (or “boot”) their computer but she denies that she had any other password which enabled her to access the Z drive or the company’s server. She said that there was a desktop shortcut on her computer which she could click to access a students attendance list on which she could mark attendances by ticking next to the students’ names. She said that she did not need a password to access this list because she only needed to click on the desktop shortcut. She had not heard of any password to access the webbased database. There was no need for her or Mabel to access Degreeasia’s server and they had never read any students’ information on their computer. 132.According to Choi, Degreeasia has had an IT administrator called John Ho since 2004 and he was still at the company as at the time of the trial. When Choi was asked (in cross‑examination) whether it was possible to trace from Degreeasia’s computer whether anyone had used his or her password to log on or what he or she had accessed, she said that did not know and that one had to ask John Ho. However, John Ho has not been called as a witness. 133.Paules Lee does accept, however, that from time to time she would be required to contact students in her class (A3). Snowy Lai would print a document containing the students’ contact details to her and she would return the document to Snowy Lai the next day. She also accepts that there had been occasions that she had been asked to contact students in the other classes in the same way. Under cross‑examination she also agreed that as of September 2005 she had a list of contact details of students in class A3 (when confronted with a list of class A3 students together with their contact details—all redacted—attached to an e‑mail sent by her dated 22 September 2005). 134.Tenny Lai gave evidence that when Paules Lee was dismissed, she (i.e. Tenny Lai) conducted an exit interview for Paules Lee together with a colleague of the accounts department called Cherry Cheung. Tenny Lai said that she asked Paules Lee to return the students list in her possession and that Paules Lee said that it was in the computer, that she had not taken it and that everything had been handed back. Paules Lee denies that anyone had asked her about the students list during the exit interview. She said that when she left Degreeasia, Hoseina and Joyce saw her pack up her things. She opened her bag and let them see what was inside. 135.At §16 of Choi’s and Tenny Lai’s witness statements, they both referred to the fact that they had been informed by their colleague Miss Sarah Burton that Paules Lee had compiled a list of A3 students with their contact details, and that Josephine Choi had asked Paules Lee to return it but Paules Lee always gave the excuse that she had forgotten about it. 136.According to Choi, Sarah Burton left Degreeasia in May 2007 (after the commencement of this action), gave birth to a baby, returned to work for Degreeasia and then left. However, no witness statement has been obtained or procured from her before she left Degreeasia in 2007 (bearing in mind that this action was started in 2006). 137.Against the backdrop of the above evidence I have the following comments and findings :
138.I therefore firmly (and have no hesitation in doing so) reject Degreeasia’s extravagant and ambitious claim that there has been wholesale copying of any lists of students and their information by Paules Lee. On the evidence I am only prepared to find that Paules Lee did have in her possession the telephone number of Lam Yiu, Lam Chi Wai and a number of class A3 students (in fact on the facts of the present case it was only Lam Yiu’s telephone number that was relevant because there was no evidence that she has had telephone conversations with anyone other than Lam Yiu). This is not because she had in any way “stolen” or deliberately memorized any student list (as Degreeasia had asserted on very flimsy evidence). This is simply because (which is common ground, even on the evidence of Lam Yiu, who had given evidence for Degreeasia on subpoena) Paules Lee has become friendly with a group of class A3 students and that she had exchanged telephone numbers in private with some of them (including Lam Yiu). Paules Lee would have lunch with those students and they would hang around after school. According to Paules Lee (whose evidence on this point I accept) there would be telephone contacts between her and the students outside school hours. 139.I then have to decide the status of Lam Yiu’s telephone number and how it fits into the Faccenda framework. Depending on such classification, Paules Lee may or may not be subject to any restraint as to its use after the termination of her employment (there is of course a further issue as to whether she has in fact so used Lam Yiu’s telephone number at all, on which see below). 140.If such telephone numbers had been “trade secrets” within the Faccenda threefold classification, then Paules Lee would not have been entitled to use it for her purpose or the purpose of her new employment after her employment with Degreeasia (e.g. for the purpose of initiating a call to the students with a view to persuading them to switch away from Degreeasia). 141.If such telephone numbers had been “confidential information” (so that disclosure or use thereof during employment would amount to a breach of implied term), Paules Lee would not be in breach of her employment contract if she were to use the telephone after termination of employment. Clause 6 of the September 2005 contract made no difference, because of my earlier determination that it was not open to an employer to restrain use of confidential information (falling short of trade secrets) post‑employment by the use of a restrictive covenant. 142.If such telephone numbers had been neither trade secrets nor confidential information, then Paules Lee would have been free to use them at any time, whether during employment or after. 143.In my view the telephone numbers of the students who had given their numbers to Paules Lee was not in the nature of trade secrets. The point is really too simple and obvious for elaboration. Though trade secret is not limited to things such as a secret trade process or formula, I refuse to accept any suggestion that it could cover a telephone number (which belongs to the owner of the telephone, not to Degreeasia) which the owner thereof is free to give out to other people. 144.Nor is the information in the nature of confidential information either. There have been cases which have held that a systematic arrangement and collection of data such as a table or list or database of names of customers, telephone numbers and the like (which are otherwise not confidential and in fact readily available) can, in some cases, qualify as confidential information deserving some degree of protection under Faccenda. This is because the law regards the time, efforts and analysis that had gone into such compilation (and the way in which the data is organized) to be something of value and worthy of protection. However, I have already rejected the suggestion that Paules Lee had made wholesale copying of an entire list. The information was acquired by her in circumstances described above. The few isolated telephone numbers were given to her in a social context by students who were sufficiently acquainted with her to be willing to be in contact with her in a social setting. They are information which is readily available to someone who had asked the students (and to whom the students were prepared to give their numbers). It is true that her employment with Degreeasia provided the background and context against which the students came to give their telephone numbers to her, but this fact does not, in my judgment, cloak the telephone numbers with the status of confidential information. 145.In any event, even if Lam Yiu’s telephone number is an item of confidential information, since we are talking post‑employment use, Paules Lee was free to use it after termination of employment. Paules Lee had not used it unlawfully even if she had taken the initiative to call Lam Yiu by utilizing the telephone number given to her by Lam Yiu (as it will be seen, it was a factual issue in dispute between the parties as to who took the initiative to call the other). Circumstances of Lam Yiu’s contact with Paules Lee, and Dr Wong’s discussion with Lam Yiu and Lam Chi Wai 146.In case I am wrong in the above, and in case it is held that somehow Paules Lee was subject to a restriction (whether under the general law or under clauses 5 or 6) against (i) using Lam Yiu’s telephone number after termination of her employment with Degreeasia or (ii) soliciting or enticing students away from Degreeasia after termination of her employment (with or without using Lam Yiu’s telephone number), I now proceed to consider the evidence as to how Paules Lee came into contact with Lam Yiu and how Lam Yiu and her friends ended up switching over to In Learning. In the course of doing so, I will also address the topic of what Paules Lee and Dr Wong are alleged to have said to Lam Yiu and her friends. Such alleged conversations also formed part of Degreeasia’s pleaded case of wrongdoing against the defendants. 147.On behalf of Degreeasia, Lam Yiu and Lam Chi Wai testified on the above matters. The combined effect of their evidence was (disregarding immaterial variations between their evidence) :
148.On In Learning’s side, Dr Wong gave evidence. Suen and Paules Lee also gave evidence which touched on the above subject matter. The combined effect is (again disregarding immaterial variations between them, and subject to what has already been mentioned above when I described Paules Lee’s and Suen’s evidence in other contexts) :
149.On the question of the contents of US News, Choi also gave some evidence on behalf of Degreeasia :
150.On the basis of the evidence I have the following comments and findings :
151.Insofar as it is necessary for me so to do, and insofar as any part of Degreeasia’s case on economic torts (variously pleaded as “conspiracy” or “interference with business” in the re‑re‑amended Statement of Claim) involved proving a predominant purpose or motive to injure Degreeasia, I reject such allegation. Even if any of the alleged acts (wrongful or otherwise) have been committed by any of the defendants, the predominant purpose or motivation would most likely be to benefit themselves. The fact that in the course of doing so they would harm Degreeasia is only an incidental by product. The Cheng Man Kit e‑mail 152.Cheng Man Kit is Sally Cheng’s younger brother. He was enrolled as a student in the IU programme, offered in Hong Kong through HKICE. By an e‑mail dated 30 October 2003 to IU purportedly from Cheng Man Kit, a number of questions were raised with IU. The questions raised in this e‑mail (“the Cheng Man Kit e‑mail”) could, on one view, be taken as raising complaints about the way in which the IU course had been handled in Hong Kong. Degreeasia complained that Cheng Man Kit had, put bluntly, been sent or deployed by In Learning to enroll on the IU programme as a “mole” and that the Cheng Man Kit e‑mail had been composed not by him, but by someone else in In Learning. 153.The e‑mail of the sender of the Cheng Man Kit e‑mail was [email protected]. 154.Before I address the evidence, I should first state my view as to why, even if Degreeasia’s factual assertions are true, they do not support or give rise to any remedy. 155.The Cheng Man Kit e‑mail was pleaded as an aspect of Degreeasia’s claims of “unlawful interference with business” and conspiracy (see §§18 and 21 of re‑re‑amended Statement of Claim). However, the pleading has not precisely identified what “unlawful act” the Cheng Man Kit e‑mail gave rise to. It is not a civil wrong to ask someone to enroll for a course (even if “pretentiously”, to use the language of the pleading). Paragraph 18(f) (which pleaded the Cheng Man Kit e‑mail) pleaded the words “malicious and injurious” but there was no plea of falsity (the word “fake” originally existed but was deleted by amendment). Therefore one can rule out malicious falsehood as the relevant “unlawful act” required for an economic tort. There was a reference to “causing injury on the reputation” of Degreeasia but there was no plea as to the actual words used or any alleged defamatory meaning the words carried, and so there was no valid plea of “defamation” as a relevant “unlawful act”. No submission has been made as to what unlawful act that could amount to. And I further find that even if the alleged acts had been committed, they were (as is plain common sense) done for the predominant purpose of benefitting In Learning (rather than harming Degreeasia, even though that may be by‑product of the act). In any event no loss has resulted to Degreeasia because there is no evidence that IU terminated its relationship with Degreeasia because of the Cheng Man Kit e‑mail. Nor is there any claim for an injunction to prevent any of the defendants to repeat the act again. 156.That strictly speaking would be enough to dispose of this part of the claim but in case I am wrong and this case shall go further, I now examine the evidence in detail. 157.Cheng Man Kit did not testify. Instead, his sister Sally Cheng did. 158.Sally Cheng worked at HKICE between 2005 and 2008. Then she left work to give birth to her child. She then resumed work. At the time of the trial she was no longer working for HKICE. Before 2005 she worked at IAL as a programme consultant (then senior programme consultant, then assistant programme manager). When she worked at IAL she used the English name Sally but when she worked at HKICE she used the English name Jasmine. The use of different English names in different employers no doubt reflected the fact that these two institutions were “at each other’s throat” and so when employees switch from one to the other, they would camouflage themselves by changing their names so as to avoid being “caught out” by their former employers (who may pursue them). 159.After Sally Cheng had joined HKICE, In Learning commenced litigation against her for one month’s salary in lieu of notice and an injunction restraining her from competing with IAL based on a restrictive covenant in her contract of employment. The matter was eventually settled by her payment of HK$15,000 into court (representing one month’s basic salary) plus costs. The settlement did not involve any injunction not to work for a competitor. 160.Her defence of this lawsuit was funded by Degreeasia. There was a good deal of evidence on the conduct of Sally Cheng in the context of the termination of her employment with IAL (and the ensuing lawsuit) as well as Dr Wong’s conduct against Sally Cheng and Thomas Leung (who was at one time an employee of IAL and who later started his own company and became a contractor: the details do not matter here). Both sides had tried to portray the other side’s conduct in a bad light. At the end of the day the evidence goes only to credit. Sally Cheng did “walk out” on her employment without giving the requisite notice. Dr Wong had conducted litigation aggressively, and he himself had been criticized by the judge in DCCJ3768 and 3769 of 2006 as having been guilty of material non‑disclosure in litigation against Thomas Leung. 161.I have borne those matters in mind in assessing their credibility. But one cannot take these matters too far because many of them are in the nature of general “character‑blackening”, and the court is of course accustomed to prejudicial “mud‑slinging” carried out in the guise of “evidence going to credit”. 162.Cheng Man Kit took his HKCEE in 2003. Afterwards he enrolled in a business course run by Royal Brisbane International College (“RBIC”), which was offered in Hong Kong through IAL. At that time Sally Cheng was still working at IAL. She introduced the course to him. He started the course in September 2003 and continued till June 2004. 163.On 8 September 2003 Cheng Man Kit submitted an application form to enroll in a programme operated by IU (and offered in Hong Kong through HKICE). Sally Cheng recognized the handwriting on the application as that of his brother’s. The address stated on the application form was not the one he lived. Sally Cheng did not know whose address that was. She was not sure about the e‑mail address on the form, but the telephone number on the phone was the correct phone number of Cheng Man Kit. The date of birth was also correct. 164.While there was a good deal of vacillation in her evidence and a lot of “guarded” phrases such as “should be”, “my impression was”, “I do not recall clearly”, certain key points did emerge from her evidence namely that :
165.Dr Wong’s evidence is, broadly, to the following effect :
166.There was some evidence as to what happened in relation to another student called Brandon Lee. A number of very hostile and aggressive e‑mails had been sent in the name of this person making numerous complaints about HKICE. However, the Brandon Lee saga has not been pleaded. The evidence at most goes to propensity, and operated as some sort of “similar fact evidence”. The suggestion was that Dr Wong was behind the Brandon Lee e‑mails as well. I have considered the evidence. It is a collateral issue. It is not crucial to my determination of the dispute between the parties and I need make no findings on them. I have not relied on them in making my findings. 167.Upon considering the evidence I have the following comments and findings :
168.But all the above must be read against the background of my earlier ruling that even if the acts in question were attributed to In Learning, they gave rise to no actionable cause of action for Degreeasia. The relevant claims of Degreeasia are therefore dismissed. The attempted diversion of phone calls 169.This is a puzzling part of Degreeasia’s claim. Degreeasia’s case, stripped to its basics, is that after Suen had left the employment of Degreeasia he telephoned Degreeasia and asked a staff member of Degreeasia (Crystal Au) to divert Degreeasia’s telephone line to Suen so that Suen could then entice away students/customers of Degreeasia. But the fact is that Crystal Au did not do as requested by Suen and therefore whatever improper diversion which Suen might have intended never materialized or occurred. 170.Therefore no possible damage could have occurred as a result of this failed attempt. Degreeasia has not sought an injunction which restrains Suen from doing the same act and in any event there cannot possibly be the slightest possibility that Suen would do it again (assuming that he had indeed done so in the past, as alleged by Degreeasia). Even if he were to try to do it again there is no possibility of him ever succeeding. Therefore even if an injunction had been sought I would have refused it. This part of the claim can therefore give rise to no meaningful remedy in favour of Degreeasia. In any event I cannot see what “unlawful act” this conduct can amount to. 171.However, in case I am wrong in my view and it is considered that Degreeasia’s complaint can give rise to some remedy in law or equity, I now go on to consider the evidence led on the topic. 172.Degreeasia’s allegation is based on the evidence of Crystal Au, a consultant who had worked at Degreeasia since June 2005. According to her :
173.Suen denies this. According to him :
174.The witnesses are in direct dispute over this issue. I find the evidence of both witnesses not entirely satisfactory. 175.I comment first on Crystal Au. One of the essential ingredients of Degreeasia’s complaint is that Suen attempted to ask Crystal Au to divert the telephone line after he had left the employment of Degreeasia. On this issue of timing, Crystal Au said that when she received the alleged phone call, Suen had already left the employment of Degreeasia. According to her, Suen had not told her in advance that he was going to leave and her evidence was very muddled as to when and how she learned of Suen’s departure. After she had finished her evidence, an e‑mail was produced by Suen which was dated 27 January 2006 (sent to a number of persons—including Crystal Au—at 1314 hrs), in which Suen said farewell to his colleagues and stated that it was his last day at Degreeasia. Suen did not go to work the next day. Chinese New Year day fell on Sunday 29 January 2006. 27 January 2006 was therefore, factually, Suen’s last day at work and he made no secret about it. He sent an e‑mail to a lot of people, including Crystal Au. In fact in his evidence he added that Crystal Au was present at a farewell lunch for him at Hang Fuk Lau Restaurant. 176.All this evidence (i.e. the e‑mail and the suggestion that Crystal Au was present at the farewell lunch with Suen) was adduced after Crystal Au has already testified. In terms of the late suggestion that Crystal Au was present at the farewell lunch, the fact that it came out so late (and has not been put to Crystal Au in cross‑examination) affects its credibility and for present purposes I place no weight on this evidence. However, the e‑mail dated 27 January 2006 was a piece of evidence the authenticity of which has not been challenged. While in cross‑examination it has been suggested to Suen that it was possible that Crystal Au had only received it after Chinese New Year (thereby suggesting that she might not have seen it on 27 January 2006), there was no application to recall Crystal Au to give positive evidence on the matter. In any event the e‑mail does show that Suen had communicated his departure to his colleagues (when Crystal Au first saw it is beside the point here) and this sits uncomfortably with her suggestion that she only learned of Suen’s departure as a result of being told by Terence Pang and being told (indirectly) by Jacqueline and not seeing Suen at work for a few days. Generally Crystal Au’s evidence as to her knowledge of Suen’s departure had a very coy, ambiguous and evasive air about it and this severely affected the reliability of her evidence. She gave me the impression that she knew more about Suen’s departure (and the timing thereof) but for some reason was extremely coy and unwilling to tell me about it. Since the timing of Suen’s departure (in particular whether she received Suen’s call after his departure) is of importance, her coyness and unsatisfactory evidence in this regard dents her credibility. 177.Further, I find the request (described by Crystal Au) extremely bizarre. If (as Crystal Au suggests) Suen had already left at the time and all he said he wanted was to receive the call of a student who might call him, there was no need to ask for the diversion of the line to him. All that was needed was for him to ask someone at Degreeasia to ask the relevant student, if he or she called, to call him at a particular number. To ask for the diversion of a number would mean that all calls to that number (intended as a hotline for Degreeasia) would be diverted wholesale to an ex‑employee. That is absolutely non‑sensical. Of course it could be said that if Suen chose to make a request that made no sense, there is nothing that Degreeasia could do about it and it is not for Degreeasia to explain away the reasoning of a request that Crystal Au allegedly received. But the fact that the request, as alleged by Degreeasia, made no sense at all is something that goes to the credibility of it having been made in the first place. 178.Suen’s explanation of the practice of diversion of lines during his employment was not entirely satisfactory either. The practice (it will be recalled) was provided by him as an explanation of why sometimes during the time of his employment he might have to call Jacqueline, Crystal or Ivy to remind them to divert 31150101 to the mobile SIM card number. Implicit within this explanation is the premise that, having been diverted to the new SIM card number, sometimes the 31150101 number would become “undiverted” and calls would go to the telephones in Degreeasia’s office. However, if (as he suggested) the number 31150101 was diverted to the new SIM card number and the phone was kept by one of the three staff he mentioned, it could simply remain “diverted” in that way and there should be no need to “undivert” it back to the office number. However, Degreeasia has not tested Suen on this point by way of cross‑examination and I cannot rule out the possibility of sensible explanations being offered about the office practice. 179.Standing back, Degreeasia bears the burden of proof. Even if there may be unsatisfactory features in Suen’s evidence, it is not for him to prove his innocence. In any event the unsatisfactory part of Suen’s evidence goes to his explanation of an office practice before he left Degreeasia’s employment. His evidence as to what happened after his employment remains one of denial. It is true that his evidence about the practice during employment was given with a view to suggesting that Crystal Au might have been mistaken, but even if one discounts that explanation, the fact remains that he has denied making the phone call to Crystal Au after his employment. There is nothing in the surrounding circumstances or contemporaneous documents to discredit or cast doubt on such a denial. At one time during Suen’s cross‑examination it was suggested that Suen’s denial meant that Crystal Au was lying. But arguments such as “are you saying that my witness lied?” do not take a party’s case very far because they can very easily be met by an equivalent rhetorical argument that “are you saying that my denial is a lie?” Issues of disputed fact are resolved in a disciplined way, not by reference to rhetorics like that. In my view in the absence of any contemporaneous documents or facts in this case which add to the credibility of Crystal Au or discredits Suen’s denial, Degreeasia has failed in discharging its burden of proof. 180.I therefore reject Degreeasia’s assertion of fact in this regard. 181.I should add that there is an issue over the circumstances over which a consent summons and certain documents were signed on behalf of Degreeasia and by Suen. They broad effect of the documents is the Degreeasia and Suen had, at one time (when Suen was unrepresented) tried to conclude a “side deal”: judgment would be entered against Suen in favour of Degreeasia by consent but Degreeasia would not enforce the judgment against him. A draft affirmation of Suen (in which allegations were made against In Learning and Dr Wong) was also produced in this process but was eventually unsigned. 182.I find the evidence about this saga unsatisfactory and unhelpful. Degreeasia has not filed the consent summons to obtain a judgment. The explanations given to me by both Mr Yau (for Degreeasia) and Suen about how this saga developed were most unsatisfactory. Suen’s evidence is full of holes and gaps. Mr Yau’s evidence is confusing and incoherent. I do not think that either of them has told me the whole truth about the matter. I therefore do not feel that I can safely place any weight on these documents. Damages 183.It follows from the above discussion that I reject all of Degreeasia’s complaints against all the defendants. Its claims shall all stand dismissed. 184.However, in case the matter proceeds further and the question of damages shall become relevant, I should indicate my views on the matter. In order not to unduly prolong what is already a very long judgment, I shall keep my comments within proportionate limits. 185.Despite the amount of time and evidence devoted to the issue, the bottomline is that it is Degreeasia’s case that as a result of the events complained of in this case (in particular the phone call between Lam Yiu and Paules Lee which led to the various meetings in IAL), a number of students left its courses. 186.Degreeasia had compiled a list of 33 students who had previously been enrolled in the Benedictine College course and who have been “lost”. Of these 33, 9 switched to USU and the destination of the rest were stated to be “others”. 187.I reject Degreeasia’s extravagant claim that damages should be measured on the basis that all 33 departures were attributable to the defendants’ wrongful acts and that all 33 would otherwise have stayed with Degreeasia. 188.There is no evidence that, apart from the 7 students (including Lam Yiu) who had gone up to IAL, any other students had been prompted to leave the Benedictine College course because of anything said or done by Paules Lee. I am prepared to accept that her conversation with Lam Yiu was a contributing factor in the “deflection” of the seven students to USU. I am even prepared to proceed on the basis that the loss of all nine students (as opposed to merely seven, which was the number that went up to IAL) on the “lost students” list who had moved to USU were caused by Paules Lee’s conversation with Lam Yiu (on the basis that they might have heard about the USU course through the grapevine of Lam Yiu and her friends). But of these nine, two switched back to Benedictine College (namely Lam Yiu and Lam Chi Wai) and so only seven students can be said to have moved to a course offered by IAL. That is the number of students by reference to which damages should be assessed. 189.I refuse to accept that the remaining students (destination said to be “others”) have left because of any wrongdoing by the defendants, or that any of them had (contrary to what they might have told Degreeasia) secretly switched to IAL’s courses as well. Degreeasia bears the burden and it cannot base its case on guesswork or self‑serving assumptions. 190.I am prepared to proceed on the basis that those seven students would otherwise have remained with Benedictine College for the next year. But it does not follow that Degreeasia will obtain, by way of damages, the tuition fees that these seven students would pay for the next year. This is because there is no evidence as to the outlay that Degreeasia had to incur in providing the course. It was suggested by Mr Yau in evidence that Degreeasia only had to pay a fixed sum to Benedictine College, but that was a mere say‑so by Mr Yau. One expects that matters such as fee structure and arrangement with Benedictine College to be documented. Degreeasia bears the burden of proof. Degreeasia has not produced the underlying documents to prove that there was indeed a fixed‑fee arrangement. It cannot be said that these are “commercial secrets” and Degreeasia does not want to divulge these in a litigation with a competitor. Degreeasia is the plaintiff and chose to sue. If it wanted to sue it should be prepared to disclose these documents (and it will have been advised of the implied undertaking in discovery). I find that Degreeasia had failed to prove its loss. 191.If I am wrong on that, then damages will be assessed on the basis of the annual tuition fee for the Benedictine College course, multiplied by seven. 192.In Degreeasia’s closing submissions it was submitted (at paragraph 35) that damages should be calculated on the same basis as that claimed by Dr Wong in his evidence in DCCJ4196/2005 (which was the claim against Sally Cheng) namely for the “lost fees” for all students who had left the institution over a particular period. As an intellectual exercise I have no hesitation in rejecting that outright. Degreeasia’s claim has to be assessed in its own legal and evidential merits. The way In Learning chose to make its claim in DCCJ4196/2005 is irrelevant. The claim by In Learning in the District Court was speculatively and extravagantly made. Degreeasia cannot take a “tit for tat” approach and make an equally extravagant claim. 193.To recap, the simple order that I make in this action is that all of Degreeasia’s claims are dismissed, with a costs order nisi in favour of all defendants. 194.By way of endnote, I should say this. From time to time I have endeavoured to set out what I regard to be the more salient features of the oral evidence given by the witnesses. The summary I have given in the course of the judgment does not purport to be an exhaustive account of what they had said. To do so would have added to the length of this judgment. The fact that I have not made reference to a number of points made by the witnesses does not mean that I have not had regard to them. It is simply the case that I do not regard those points as having any significant effect on (or detracting from) my findings of fact.
Mr George Chu, instructed by Messrs K.Y. Lo & Co., for the Plaintiff Ms Janine Cheung, instructed by Messrs Huen & Partners, for the 2nd and 3rd Defendants The 1st Defendant in person, present | |||||||||||||||||||||||||
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