Charter Sense Ltd v. Ng Kin Yan also known as Patrick Ng Kin Yan

HCMP 1036/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1036 OF 2012

(ON AN INTENDED APPEAL FROM HCA NO. 2082 OF 2011)

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BETWEEN

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J U D G M E N T

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Hon Fok JA (giving the Judgment of the Court):

1.By his Decision dated 13 March 2012, Deputy High Court Judge Lok refused to grant the plaintiff an interlocutory injunction against the defendant in this action. The plaintiff applied to the Deputy Judge for leave to appeal but leave was refused on 14 May 2012, with the Reasons for Decision being handed down on 16 May 2012. The plaintiff now applies to this court for such leave pursuant to RHC O.59 r.2A by summons dated 24 May 2012.

2.Draft grounds of appeal are attached to the summons for leave to appeal and the plaintiff has served a written skeleton in support of the application.  In addition, the plaintiff has served a statement pursuant to Practice Direction 4.1, para. 9 confirming its view that the application can be determined on the basis of written submissions only.

3.The defendant has served a statement in opposition and skeleton submissions in respect of the application.

4.The dispute between the parties arises in the context of an employment relationship between the plaintiff and the defendant.  The defendant’s employment by the plaintiff as a Sales Manager was terminated on 17 June 2011.  The interlocutory injunction sought by the plaintiff was to restrain the defendant from using or disclosing a clients’ contact list of the plaintiff (“the Clients’ Contact List”) and to restrain the defendant from soliciting clients of the plaintiff for a period of one year after the termination of the defendant’s employment with the plaintiff.

5.The proposed grounds of appeal advance two principal arguments on behalf of the plaintiff.  First, it is sought to argue that the Judge was wrong in finding the Clients’ Contact List was not confidential information.  Secondly, it is sought to argue that the Judge was wrong to apply the balance of convenience test, alternatively, in concluding that the balance of convenience lay in favour of the defendant.

6.We are not satisfied that the proposed challenge to the Judge’s conclusion that the Clients’ Contact List was not confidential information enjoys a reasonable prospect of success.  Whilst a client contact list may contain or constitute confidential information, not every such list will be confidential and, on the facts of this case, the Judge concluded it was not (Decision §16 and Reasons for Decision §6).  Having seen and considered the Clients’ Contact List, which is in the bundles, and in the light of the evidence filed, we do not think it is reasonably arguable that the Judge was wrong in his conclusion.

7.On that basis, there is no question of the plaintiff being entitled to interlocutory injunctive relief to restrain the defendant from using or disclosing the Clients’ Contact List.

8.As for the application for injunctive relief in respect of the non-solicitation clause, notwithstanding the fact that this is a negative covenant, the court retains a discretion whether or not to grant an injunction to enforce it.  In the present case, it is a fact that the period of one year from termination of the defendant’s employment had substantially run its course when the matter came before the Judge, and has now expired.  In the circumstances, we do not think that it is reasonably arguable that the court would, if leave to appeal were granted, exercise its discretion to grant an injunction to restrain the defendant from soliciting former clients of the plaintiff.

9.For these reasons, we would therefore dismiss the summons for leave to appeal and, since we consider that the application is totally without merit, we would make an order, pursuant to RHC O.59 r.2A(8), that no party may request this determination to be reconsidered at an oral hearing inter partes.

10.As for costs, these should be borne by the plaintiff.  The defendant’s costs in respect of the summons will be assessed on a gross sum basis and, to this end, we therefore direct the defendant’s solicitors to submit a bill of costs within seven days hereof and give leave to the plaintiff to submit its response within seven days thereafter.

Written submissions by Mr Leo Remedios, instructed by Bernard Wong & Co., for the Plaintiff/Applicant

Written submissions by Ms Josephine Tjia, instructed by To, Lam & Co., for the Defendant/Respondent