EVENTMASTER LTD v. CHEN HIU KWAN AND OTHERS

HCA 735/2021

[2026] HKCFI 3380

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 735 OF 2021

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BETWEEN

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J U D G M E N T

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A. Introduction

1.  In these proceedings, the Plaintiff (“Eventmaster” or “P”) claims against Chen Hiu Kwan (“Matthew” or “D1”), Ngai Chung Ni (“Jenny” or “D2”), Episode Limited (“Episode” or “D3”) and Cheung Mong (“Eugenie” or “D4”) (together “Ds”) for inter alia breaches of duties for diversion of business opportunities away from P. In short, whilst employed by P, D1 and D2 incorporated D3. P says that D1 and D2 engaged in a competing business via D3 before leaving P’s employment and, after their departure, they induced D4 (who remained employed by P) to work for D3 and provide confidential information to D3, until D4’s service was terminated by P upon discovery of the scheme. P’s causes of action include breach of duties under employment contract, breach of fiduciary duties, breach of confidence, dishonest assistance, inducement to breach of contract and conspiracy to injure by unlawful means, amongst which the causes of action of dishonest assistance, inducement to breach of contract and conspiracy to injure are directed against D1 to D3 only.

2.  Ds used to be represented by the same law firm with one set of pleadings filed for them. D1 (Matthew), D2 (Jenny) and D4 (Eugenie) made witness statements for themselves, and also for D3 (Episode). However, only D4 remained legally represented at trial. D2 appeared in person, whilst D1 and D3 were absent at trial. As a result, D1’s witness statements are not admitted as evidence. Whilst D2 and D4 purported to give evidence for D3 in their witness statements, neither of them represented (or was authorised to represent) D3 at trial. According to D2, D3 ceased business operation since August 2024.

3.  As D2 appeared in person, I directed that the trial be conducted in Chinese, save that the parties may lodge written submissions in English. In the end, Mr Wou for P and Mr Jeffrey Lai for D4 have lodged closing submissions in English, whilst D2 has lodged closing submissions in Chinese.

B. Salient Background

4.  Much of the salient background here is not in dispute. For ease of reference, they are set out here, based primarily on documentary evidence and the written closing submissions of the parties. As regards other factual disputes, they would be addressed later as part of the analysis of the case.

5.  Eventmaster (P) is and was a company incorporated in Hong Kong on 6 January 2015 which carries on business as service provider in technological support in relation to organisation and management of events. Mr Tong Chin Chiu (“Tony”) is Eventmaster’s sole director and Mr Yip Chun Ching (“Johnathan”) is its consultant.

6.  By 2019, Eventmaster had business dealings with, inter alia, the following corporate clients or event agencies (“P’s Clients”):

(1) AXA General Insurance Hong Kong Limited (“AXA”);

(2) DBS Bank (Hong Kong) Limited (“DBS”);

(3) Hongkong Land Limited (“HK Land”);

(4) Pacific Alliance Group (“PAG”);

(5) Prada S.P.A. (“Prada”);

(6) Television Broadcasts Limited (“TVB”);

(7) AIA International Limited (“AIA HK”);

(8) Pico Far East Holdings Limited (“Pico”);

(9) OnStage Events & Communications Limited (“Onstage”);

(10) Bentley Communications (“Bentley”); and

(11) Sculpture Marketing Services Event Marketing (Hong Kong) Limited (“SMS Event”).

7.  As regards Ds:

(1) Matthew (D1) was employed by Eventmaster as business director on 11 July 2016.

(2) Jenny (D2) was employed by Eventmaster as an account manager on 22 August 2017.

(3) Eugenie (D4) was employed by Eventmaster as an account manager on 2 November 2017.

(4) Matthew was responsible for the sales and marketing activities of inter alia P’s Clients, and he also managed the sales team. As account managers, Jenny and Eugenie were responsible for the sales and marketing activities of a subset of P’s Clients.

(5) On 25 April 2019, Matthew and Jenny incorporated Episode (D3) with the object of carrying on a business similar to Eventmaster. Matthew held 40% of Episode’s issued share capital, Jenny held 20%, Yuen Ching Yan (“Karis”) (an employee of Eventmaster at that time) held 10%, Erik Chan (“Erik”) (an employee of Apptask Ltd, which was and is Eventmaster’s supplier) held 10%, and a Yeung Wing Chee held the remaining 20%. Matthew and Jenny also became Episode’s directors.

(6) On 14 July 2019, Jenny tendered her resignation by email to Tony. She proposed her last date to be 14 August 2019. Upon further discussion with Tony, it was agreed that Jenny would continue to work on a part-time basis, with revised base salary of HK$10,000 per month starting from 1 September 2019.

(7) On 17 July 2019, Matthew tendered his resignation by email to Tony (although his pleaded case is that he tendered his resignation on 15 July 2019). He proposed his last date to be 31 August 2019.

(8) On 6 September 2019, Jenny gave notice to Tony to terminate her work with Eventmaster after 30 September 2019.

(9) On 29 May 2020, Eugenie’s employment was terminated by Eventmaster at or following a meeting held on the same day.

8.  It is Ds’ case that Matthew and Jenny need only give one month’s notice and their employment with Eventmaster ended after 14 August 2019 and 13 August 2019 respectively. At trial, Jenny contends that her last date of employment should be 14 August 2019 (instead of 13 August 2019). On the other hand, P disagrees and contends that Matthew and Jenny were employed by Eventmaster until 31 August 2019 and 30 September 2019 respectively.

9.  In the case of Eugenie, there is no dispute that she remained employed by Eventmaster until 29 May 2020.

10.  In a nutshell, it is P’s case that:

(1) Matthew, Jenny and Eugenie owed the following duties as employees, salespersons and/or de facto directors of Eventmaster:

(a) fiduciary duties;

(b) express terms in their employment contracts;

(c) an implied duty of fidelity including the duty to act faithfully in the best interests of Eventmaster; and

(d) an implied duty of confidence.

(2) In relation to P’s Clients, the emails received or sent, invoices, quotations, contracts, agreements, business strategies, documents sent and/or received by Eventmaster in relation to its clients, are confidential information (“Confidential Information”), and Matthew, Jenny, Eugenie were all recipients of such information.

(3) In breach of their duties, Matthew and Jenny carried on, through Episode, a business similar to and in competition with Eventmaster. They misused Eventmaster’s Confidential Information and diverted Eventmaster’s business opportunities to Episode.

(4) The knowledge of Matthew and Jenny is to be imputed to Episode.

(5) After leaving Eventmaster, Matthew induced Eugenie to work for Episode. In breach of her duties, Eugenie misused the Confidential Information, concealed the requests by P’s Clients’ for quotes, and diverted business opportunities to Episode.

(6) Matthew, Jenny and Episode are also liable for dishonest assistance, inducement to breach of employment contract and conspiracy to injure by unlawful means.

11.  On the other hand, Ds’ stance may be summarized as follows:

(1) The last day of employment of Matthew and Jenny was 14 August 2019.

(2) Matthew, Jenny and Eugenie did not owe fiduciary duties to Eventmaster.

(3) Matthew was not involved in the business and operation of Episode from its incorporation to 14 August 2019.

(4) Jenny was not involved in the business and operation of Episode from its incorporation to 13 August 2019 (or 14 August 2019).

(5) Matthew and Jenny were entitled to have an intention to leave Eventmaster and take preparatory steps for their future employment whilst employed by Eventmaster.

(6) Matthew and Jenny did not solicit away any business opportunity from Eventmaster during their employment with Eventmaster.

(7) Matthew, Jenny and Eugenie were recipients of the Confidential Information in relation to P’s Clients in their course of employment with Eventmaster. However, this is not capable of being classified as confidential information and/or trade secrets.

(8) Matthew, Jenny and Eugenie had duly notified and passed on every invitation for quotation to Eventmaster once the same was received by them when they were under Eventmaster’s employment, and whatever loss P suffered was not a result of any breaches of Ds.

(9) Matthew denied knowing the terms of Eugenie’s employment contract.

(10) By May 2020, Tony had learnt of the existence of Episode and Matthew and Jenny being its directors. Further, Tony knew that Eugenie was a former colleague of Matthew and Jenny, and she had maintained a friendly relationship with them even after their departure. Tony would like to probe for information on the development and business operation of Episode, and asked Eugenie to approach them to gather information discreetly, and allowed her to release information held by Eventmaster in exchange whenever necessary.

(11) Eugenie also asserted that the purpose of her communications regarding P’s Clients with Matthew and Jenny was to seek guidance from them.

12.  In short, the following are in dispute:

(1) whether Matthew, Jenny and Eugenie owed fiduciary duties to Eventmaster;

(2) whether the Confidential Information gives rise to duty of confidence;

(3) whether Matthew, Jenny and Eugenie breached their duties to Eventmaster;

(4) whether Matthew, Jenny and Episode are liable for other causes of action; and

(5) whether Eventmaster suffered loss and, if so, the quantum thereof.

13.  On the question of duties, Mr Jeffrey Lai accepts on behalf of Eugenie that she owed contractual duties to Eventmaster during her employment, including express terms and an implied duty of fidelity. What remains in dispute is whether Eugenie (and similarly Matthew and Jenny) owed fiduciary duties and applicable duty of confidence to Eventmaster.

14.  On the question of breach of duties, the parties have addressed the allegations pertaining to each client and/or agent in turn. For instance, in the case of Eugenie, P alleges that she breached her duties in relation to different existing or potential clients and/or projects of Eventmaster, namely:

(1) Bentley, which would handle events for Hong Kong Jockey Club (“HKJC”);

(2) CBRE Global Workplace Solutions (“CBRE GWS”);

(3) China Mobile Hong Kong (“CMHK”);

(4) DBS and streaming project;

(5) Hong Kong Family Welfare Society (“HKFWS”);

(6) Hong Kong Tourism Board (“HKTB”);

(7) LORE Limited (“Lore”);

(8) Pico;

(9) TVB; and

(10) UBS.

15.  On behalf of Eugenie, Mr Jeffrey Lai says that the Court should address the following issues separately with respect to each individual client:

(1) The act that Eugenie had done in relation to a particular client in question;

(2) Whether such act was a wrongful act;

(3) The nature of such wrongful act (i.e. breach of contract, breach of fiduciary duties, etc);

(4) Whether such wrongful act caused P’s alleged loss in relation to that particular client; and

(5) Amount for which Eugenie should be liable in the circumstance in relation to that particular loss.

16.  In principle, I agree that this is the proper approach, in considering both liability and quantum. That said and where appropriate, it would remain helpful to consider, in general or as a starting point, whether Matthew, Jenny and Eugenie had acted in breach of duties owed to Eventmaster.

C. Witnesses

17.  There are four factual witnesses, namely Tony and Jonathan testifying for P, and D2 and D4 testifying for themselves. They have each made two witness statements. Whilst I would deal with their evidence in the analysis of the case, I would at this juncture make some overall observations.

C1. Tony

18.  Tony came across as an honest and forthcoming witness.

19.  To begin with, there is no counterclaim made against Eventmaster. Nor are there any serious allegations made against Tony personally either. The merits of P’s case turn primarily on the conduct of Ds as alleged wrongdoers. The conduct of P (and those representing P) is not really the focus.

20.  On the whole, Tony’s evidence is fair and measured. He readily made concessions where appropriate. For instance:

(1) He accepted in cross-examination that whether Eventmaster could secure business from P’s Clients would depend on various factors, including those beyond P’s control such as Covid-19 at the time.

(2) He frankly admitted that he was not really a salesperson, and he only picked up sales work after Matthew’s departure from P.

(3) He fairly accepted that Eugenie was not a senior employee.

21.  The above are by no means exhaustive but the point is that he gave direct and forthcoming evidence, even if such evidence may militate against P.

22.  Moreover, Tony remained unshaken in cross-examination. In particular, he firmly maintained that he never asked Eugenie to probe information from Episode, let alone leaking Eventmaster’s information in exchange. Tony’s account is consistent with contemporaneous evidence. As may be seen from the transcript of the first meeting on 29 May 2020 (“1^st Meeting”), initially none of Karis, Erik and Eugenie admitted their interest or involvement in Episode. It was not until they were confronted with company search records of Episode that they admitted the same at the 1^st Meeting. Despite that, Eugenie still sought to downplay her role. If, as alleged, Eugenie was instructed by Tony to probe, there would have been little reason why she did not put that on record.

C2. Jonathan

23.  Jonathan’s role is that of a consultant. He provided advice on sales and operations of Eventmaster.

24.  During cross-examination, Jonathan was questioned extensively in relation to the second meeting held on 29 May 2020 which he, Eugenie, Tony and Terry (a person in the legal field) attended (“2^nd Meeting”). His testimony is consistent with the video recording of the 2^nd Meeting, part of which has been played in open court.

C3. Jenny / D2

25.  Jenny came across as a rather defensive and evasive witness.

26.  To start with, Jenny was adamant that her last day of employment with Eventmaster was 14 August 2019 (although her pleaded last day of employment was 13 August 2019) and that she only pursued a competing business afterwards. This appears to be a highly artificial argument, which is put forth to justify conduct that is otherwise problematic. Even on her own case, she was still working for Eventmaster after 14 August 2019 (albeit on a part-time basis until 30 September 2019) and yet engaging in a competing business via Episode in parallel. At the very least, this amounts to conduct which is commercially questionable, if not also unethical.

27.  Jenny’s case on her last employment date flies in the face of contemporaneous documents. Contrary to her assertion, the contemporaneous salary payment slips and MPF payment documents suggest that she remained employed by Eventmaster until 30 September 2019.

28.  Moreover, it is inherently improbable that Matthew and Jenny incorporated Episode in April 2019 but did not pursue any competing business for a few months during April to August 2019. There seems to be little reason why they had to incorporate a corporate vehicle a few months in advance. To the contrary, it would appear that Episode commenced its business at least by July 2019 (if not earlier). As pointed out by Mr Wou on behalf of P, in Episode’s invoice issued to PAG on 17 September 2019, the quotation number shown on the invoice is “PAGQ20190717_PAG _1.3”. I agree with Mr Wou that the date of quotation is embodied in the quotation number set out in Episode’s invoices issued to P’s Clients. It follows that Episode issued a quotation to PAG on 17 July 2019. That makes sense as it would take time for the quotation to be accepted by PAG and for works to be carried out by Episode, before an invoice was issued to PAG two months later. This undermines Jenny’s version of events that she did not engage in any competing business via Episode before August 2019.

29.  Indeed, Jenny appears rather evasive when she was questioned about the date of the quotation issued to PAG. She said she did not recall its date. In a similar vein, when questioned about the date of other Episode’s quotations to AXA, HK Land and Prada, she claimed that she did not know or did not recall, although she could not rule out they were issued in July 2019. One must not forget that Jenny was a 20% shareholder and also a director of Episode. The totality of her evidence is that she did not know much about what Episode might or might not have done before August 2019, which seems rather artificial and incredible. It is not going to assist for Jenny to shift the blame to Matthew because, as business partners and co-director, it seems unreal to suggest that she had no knowledge or recollection of what Episode had done, or what Matthew had procured Episode to do.

30.  Moreover, given that she was a shareholder and director, and that Ds were represented by the same law firm at one stage, Jenny (or Ds) should be in a position to disclose these quotations, but they never disclosed them in this action. This tends to suggest that the quotations, if disclosed, would likely undermine Jenny’s case and demonstrate that the quotations were indeed issued in July 2019.

31.  On the whole, I have great reservations over the evidence of Jenny. In the premises, I would prefer the evidence of Tony and Jonathan insofar as the evidence of Jenny conflicts with the same.

C4. Eugenie / D4

32.  Eugenie came across as a timid and reserved witness. On one view, it may be said that she does not appear to be a dishonest witness. However, the Court should not attach too much weight to the demeanour of a witness. Moreover, one must not forget that, even on P’s case, it was Matthew and Jenny who took the initiative to set up a competing business, and Eugenie was only approached subsequently by Matthew to assist in diverting business or business opportunities to Episode. Eugenie was never said to be the mastermind or perpetrator of the scheme to begin with.

33.  On the whole, Eugenie’s case and evidence do not sit well with contemporaneous documents.

34.  A central theme of Eugenie’s defence is that she acted with the consent and instructions of Tony. She said Tony asked her to probe Matthew and Jenny for Episode’s information in exchange for Eventmaster’s information as a bait. However, Eugenie mentioned nothing of this sort when she was questioned over her dealings with Episode, whether during the 1^st Meeting or the 2^nd Meeting on 29 May 2020, which undermines her case. To the contrary, one can see from the transcript of the 1^st Meeting that Eugenie sought to distance herself from Episode, alleging she never heard of it till May 2020. This does not tally with her current defence that she was specifically instructed by Tony to probe into the affairs of Episode.

35.  Moreover, Eugenie alleged in her witness statement that Jonathan and others detained her in one of the bosses’ room at the 2^nd Meeting and they took away her mobile phone and denied her any access thereto. This is a rather serious allegation by Eugenie. Yet, as can be seen from the video recording of the 2^nd Meeting, Eugenie’s mobile phone was not taken away, and she was the last one to leave the room following the 2^nd Meeting. Whilst Mr Jeffrey Lai sought to brush aside such discrepancies on account of lapse of time, emotional distress and late discovery of P’s video recording, the fact is that Eugenie was fired at the 2^nd Meeting and it seems rather unlikely she would have forgotten what had happened. The discrepancies thus suggest she was making up stories to create excuses for her failure to deny or refute P’s allegations at the time.

36.  Importantly, Eugenie’s testimony is incoherent and unconvincing. When queried over the circumstances in which Tony allegedly asked her to probe, she said that Tony gave her those instructions on one occasion when Tony talked to her in the office. She said the meaning of “probing” meant “to seek help” from Matthew and Jenny. Even if one is to accept her evidence, that would at most suggest that Tony told her to ask Matthew and Jenny for help as ex-colleagues. It is a quantum leap to equate this with alleged instructions to Eugenie to probe Matthew and Jenny for Episode’s information.

37.  When pressed further in cross-examination, Eugenie said there were multiple occasions where Tony asked her to seek help from Matthew and Jenny, each time on a different project. Yet subsequently, she said that Tony told her to probe for information (“攞料”) instead of seeking help. Apparently, Eugenie realised that her assertions of Tony asking her to seek help do not really justify her acts, and she struggled to present a coherent version of events.

38.  Worse still, when confronted with documentary evidence such as WhatsApp messages between Matthew and herself, Eugenie had no alternative but to concede that she agreed to have a part-time job with Episode in May 2020. In an attempt to reconcile such unfavourable evidence, she went so far to boldly assert she was only “pretending” to work for Episode. This is despite her concessions in cross-examination that she drafted quotations of Episode for Matthew’s approval. With respect, her stories simply do not add up.

39.  On the whole, Eugenie’s evidence is incoherent and unconvincing. I would prefer the evidence of Tony and Jonathan insofar as the evidence of Eugenie conflicts with the same.

C5. Matthew / D1

40.  Matthew was absent from trial and did not testify. No explanation has been given as to why he did not come forward. Given P’s allegations and evidence, one would expect Matthew to testify. In the absence of a satisfactory explanation, I am prepared to draw adverse inference against Matthew.

D. Duties to Eventmaster

D1. Duration of Employment of Matthew

41.  Matthew was absent at trial. However, this does not mean that the Court would automatically rule in favour of Eventmaster. Instead, the Court must still consider the relevant issue and evidence fairly and properly.

42.  It is Matthew’s pleaded case that he tendered his resignation on 15 July 2019 and his employment lapsed after 14 August 2019. However:

(1) On the evidence, Matthew tendered his resignation by email to Tony on 17 July 2019, not 15 July 2019.

(2) He said in such email that his last day of employment would be 31 August 2019, not 14 August 2019.

43.  Even if Matthew had to give one month’s notice to resign, there is nothing to stop him from giving a notice exceeding one month. It follows that Matthew could validly give a notice (exceeding one month) on 17 July 2019 to terminate his employment after 31 August 2019.

44.  The above is borne out by contemporaneous documents anyway:

(1) The salary payment slip to Matthew printed on 29 August 2019 shows that for the period from 1 to 31 August 2019, Matthew’s salary was $22,525.89 with MPF contribution of $1,185.57;

(2) The HSBC statement dated 29 August 2019 shows that the salary of $22,525.89 was paid;

(3) The MPF contribution statement for the period from 1 to 31 August 2019 shows that MPF contribution of $1,185.57 was made.

45.  In the premises, Matthew remained employed by Eventmaster until 31 August 2019.

D2. Duration of Employment of Jenny

46.  On the evidence, it is not in dispute that Tony (on behalf of P) and Jenny orally agreed that Jenny should work on a part-time basis so that she could have more flexible hours to take care of her family. Nevertheless, Jenny’s position and responsibilities remained unchanged, and she would continue to earn base salary and commission (being 10% of sales), save that her base salary was revised to HK$10,000 per month starting from 1 September 2019.

47.  Jenny’s main argument is that the above oral agreement was not reduced into writing. In her closing submissions, Jenny relies on section 5 of the Employment Ordinance (Cap. 57) (“EO”) and contends that, without a written contract setting out the new terms of her employment, such contract could only be a contract for one month, and hence her last day of employment was 14 August 2019. She further argues that, after 14 August 2019, she was not obliged to comply with the duties in her original employment contract.

48.  With respect, such argument is misconceived.

49.  First of all, an employment contract could be an oral agreement pursuant to section 2 of EO. Section 5 of EO further provides that:

“5. Duration of contracts of employment

(1) Every contract of employment, which is a continuous contract, shall, in the absence of any express agreement to the contrary, be deemed to be a contract for 1 month renewable from month to month.

(2) Notwithstanding that it is proved that a contract of employment is for a period in excess of 1 month such contract shall be deemed to be a contract for 1 month renewable from month to month unless the contract is evidenced in writing signed by each of the parties thereto.

(3) Notwithstanding any other provision of this section, a contract of employment entered into by a manual worker for a period of 6 months or more or for a number of working days equivalent to 6 months or more shall be deemed to be a contract for 1 month renewable from month to month.

(4) Where any contract of employment for a period in excess of 1 month is deemed by virtue of the provisions of subsection (2) or (3) to be a contract from month to month the wages per month shall be such proportion of the total wages agreed under the contract as 1 month bears to the agreed duration of the contract.”

50.  Hence, whilst the employment contract containing the new terms has not been reduced into writing, the result is merely that such contract was deemed to be a contract for one month renewable from month to month. It is not the case that the contract would automatically lapse after one month.

51.  In fact, it was not until 6 September 2019 that Jenny tendered her resignation to Tony by WhatsApp and said that her last day of employment would be 30 September 2019. It follows that Jenny’s employment with Eventmaster continued until 30 September 2019.

52.  Secondly, the above is borne out by contemporaneous documents:

(1) The salary payment slip to Jenny printed on 29 September 2019 shows payment of salary of HK$36,440 (including base salary of HK$10,000) for the period from 1 to 30 September 2019 with MPF contribution of HK$1,500.

(2) The HSBC statement dated 30 September 2019 confirms a payment of salary of HK$36,440 to Jenny.

(3) The MPF contribution statement for the period from 1 to 30 September 2019 shows a contribution of HK$1,500 to Jenny.

53.  In the premises, Jenny remained employed by Eventmaster until 30 September 2019.

D3. Express Contractual Duties

54.  It was provided in the express terms in the employment contracts between Eventmaster and each of Matthew, Jenny and Eugenie as follows:

(1) The employee should not disclose any confidential information concerning the business and affairs of Eventmaster which may come to his/her knowledge during his/her employment to any other person who is not authorised to receive such information (“Confidence Clause”); and

(2) Without prior written consent by Eventmaster, the employee may not engage in any other employment, business or paid services outside Eventmaster (“No Outside Business Clause”).

55.  The above is not disputed by Ds.

D4. Implied Duty of Fidelity

56.  It is well established that an employee owes a duty of good faith and fidelity to his employer during the subsistence of the employment: see e.g. Green Light Multiplex Co Ltd & Anor v Lam Shi Yan & Anor [2024] HKCFI 2101 at [68], citing Chitty on Contracts: Hong Kong Specific Contracts, Vol.1 (7th edition (2022) at Chapter 12).

57.  On behalf of Eugenie, Mr Jeffrey Lai accepts that she owed an implied duty of fidelity to Eventmaster during her employment therewith, but he contends that scope of such duty is in dispute. Among others, he argues that the extent of the duty will depend on the facts of each case, such as the seniority of the staff. Further, he stresses that legitimate preparatory steps for alternative employment do not amount to breaches of the implied duty of fidelity.

58.  Whilst I have no quarrel with the above, it remains helpful to lay down some concrete parameters. In this regard and with some modifications, I agree with Mr Wou that the implied duty of fidelity and good faith owed by Matthew, Jenny and Eugenie would encompass the following:

(1) they should not persuade customers of Eventmaster to move with them to another employer (Episode);

(2) they should not take part in a business in competition with Eventmaster, or otherwise work for another employer (Episode) in a role inconsistent with the current employment;

(3) they should not disclose any confidential information that came to their knowledge as a result of their employment, and must not use to the detriment of Eventmaster any information obtained in confidence during employment;

(4) they have a duty to disclose information useful to Eventmaster, which is obtained in the course of employment.

D5. Fiduciary Duties

D5.1 General principles

59.  The general principles on fiduciary duty have been helpfully summarised by Ma J (as he then was) in Kao Lee & Yip v Koo Hoi Yan & Anor [2003] HKLRD 296 at [36]-[52], [57], [71]-[76] (see also Union Knopf (HK) Ltd. v Marcel Sossnowski & Anor, DCCJ 680/2010 (20 November 2013, unreported) at [15]-[17]). Among others:

(1) The essence of a fiduciary relationship is one of trust and confidence between the fiduciary and the beneficiary.

(2) The critical feature of fiduciary relationships is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical way. In short, the person classified as a fiduciary is placed in a position of trust and confidence in relation to the beneficiary, who is in a position of “vulnerability”.

(3) The distinguishing or core obligations of a fiduciary is that of loyalty (or fidelity) and good faith. They include (i) the duty not to place himself in a position where his or anyone else’s interests would or may conflict with duties owed to the beneficiary (the Non-Conflict Duty) and (ii) the duty not to make a profit from his position (the Not to Profit Duty).

(4) In a fiduciary relationship arising from an employment contract:

(a) Where the fiduciary obtains information from a client or customer that is relevant to the interests of the beneficiary, the fiduciary is under a duty to pass this on to the beneficiary.

(b) A fiduciary would not be able to use the time during which he was meant to be working for the beneficiary to be working for his own and anyone else’s interests. In other words, he should not use “company” time other than for “company” purposes.

(c) Generally, a fiduciary was entitled to use his spare time for whatever activities he chose to indulge in, as long as these were not inconsistent with the fiduciary duties he owed to the beneficiary or in direct competition with the beneficiary’s interests.

(d) The making of arrangements in his spare time during a person’s employment to compete with the employer after termination of employment did not necessarily involve a breach of duty. To suggest otherwise would amount to an unjustifiable restriction on a person’s freedom to work. It was, however, a question of degree.

(e) It would not be a breach of duty for the fiduciary merely to evince an intention to leave and set up in competition with the beneficiary. The taking of some preparatory steps was permissible.

(f) It would in every case a question of fact and degree whether or not in taking preparatory steps for his future whilst still in a fiduciary relationship, a fiduciary would be found to have been in breach. What was or was not permissible in some cases might not apply to all situations. Ultimately, they were fact sensitive and involved matters of degree. The circumstances of each case would vary.

(g) A fiduciary is entitled to take some preparatory steps for his future occupation even during the time he is still in the employment of the beneficiary, but he must not overstep the mark of what is acceptable. The same applies to the duty of good faith and fidelity owed as an employee.

(h) After termination of employment, fiduciary duties will cease except that the fiduciary cannot appropriate a mature business opportunity that belongs to his ex-employer.

60.  In the case of employees, fiduciary (as well as other) duties owed to the employer may be set out in written form in the contract of employment, such as clauses regarding confidence in the employment contracts. In determining whether an employee who is not a director might owe fiduciary duties, an analysis is required as to whether in all the circumstances, and by reference to the specific contractual obligations, the employee has undertaken to act solely in the employer’s interests: Green Light Multiplex Co Ltd & Anor v Lam Shi Yan & Anor [2024] HKCFI 2101, [81]. Where fiduciary duties arise out of the employment relationship, the scope of the fiduciary obligations both arises out of, and is circumscribed by, the contractual terms, because equity cannot alter the terms of the contract validly undertaken: University of Nottingham v Fishel [2000] ICR 1462 at 1491.

61.  In general, senior employees are more likely to owe fiduciary duties. Specifically, fiduciary duties may be owed by an employee who is a de facto director (albeit not a de jure director). For instance, in South China Media Ltd v Kwok Yee Ning [2018] HKDC 194, it was held that an “advertising director” was a de facto director by reason of (i) the employee having the title of “advertising director” and being held out to clients as “advertising director” and (ii) the employee having authority to negotiate with clients on the terms of contracts and to enter into such contracts for and on behalf of the company.

62.  In addition, salespersons may owe fiduciary duty in relation to their sales responsibilities. For instance, in Helmet Integrated Systems Ltd v Tunnard [2007] FSR 16, it was held that the salesperson owed fiduciary duty as the employer would have no control over how the salesperson deployed the information he learnt as a salesman and would be dependent on him to pass it on, and the employer would otherwise be vulnerable to any misuse of such information, the dissemination of which was outside its control. Such vulnerability is a “defining characteristic” of a fiduciary relationship.

D5.2 Matthew

63.  P argues that Matthew owed fiduciary duties to Eventmaster as its senior employee, de facto director and/or salesperson.

64.  On the evidence, Matthew was the business director and was held out as “business director” to P’s Clients. He led the sales and marketing team, and had authority to set prices and negotiate on the terms of sales contract for and behalf of Eventmaster. According to Tony’s testimony, he left the sales team entirely to Matthew who would merely consult Tony on costs of projects. Whilst Tony had the final power of approval, he only checked to make sure the project was profitable. Moreover, Matthew, Tony and Johnathan had weekly sales meeting to discuss sales issues. Similar to the “advertising director” in South China Media Ltd v Kwok Yee Ning (supra), it may be said that Matthew exercised the powers and discharged the functions of a director.

65.  In any event, there can be no question that Matthew was the recipient of the Confidential Information in relation to his sales work. There is express provision in his employment contract governing the same, i.e. the Confidence Clause. I agree with Mr Wou that Matthew is in a position of trust and confidence in relation to the Confidential Information.

66.  In addition, Matthew is in charge of other account managers like Jenny and Eugenie. As confirmed by the testimony of Jenny and Eugenie, clients would contact individual account managers directly. Hence, if Matthew (or account managers reporting to him) failed to pass on the clients’ requests, Eventmaster would have no way to know. Further, Eventmaster would have no control over how Matthew deployed the information he learnt as a salesperson and would be dependent on him to pass it on. I agree with Mr Wou that Eventmaster would be vulnerable to any misuse of such information and such vulnerability is a defining characteristic of a fiduciary relationship.

67.  In my view, Matthew did owe fiduciary duties to Eventmaster. At the very least, that must be the case in relation to his sales work.

D5.3 Jenny and Eugenie

68.  In relation to Jenny and Eugenie, Mr Wou accepts in P’s closing submissions that they were not senior employees but contends that, as salespersons, they owed fiduciary duties at least in relation to their sales work.

69.  On behalf of Eugenie, Mr Jeffrey Lai stresses that Eugenie was not a de facto director, and she was merely a frontline salesperson of P who did not have a freehand or autonomy in client management, and was incapable of making any decision at corporate level.

70.  Yet, this misses the point as P is not seriously contending that Jenny and Eugenie were senior employees or de facto directors of Eventmaster. Importantly, neither Jenny nor Eugenie has any real answer to P’s argument that they owed fiduciary duty to Eventmaster at least in relation to their specific contractual obligations over sales work. They were in a position of trust and confidence in relation to the Confidential Information, and this is further borne out by the express Confidence Clause contained in their employment contracts.

71.  In my view, Jenny and Eugenie owed fiduciary duties to Eventmaster at least in relation to their sales work.

D6. Imputation of Knowledge of Matthew and Jenny into Episode

72.  Matthew and Jenny were the 40% and 20% shareholders of Episode (together controlling a majority 60% of shares in Episode). They were also the directors of Episode. Moreover, one must not overlook the fact that Matthew and Jenny joined force to incorporate Episode in April 2019, and they tendered resignations in parallel in mid-July 2019. Indeed, as revealed in Jenny’s testimony, she and Matthew were the only staff members working for Episode up to May 2020. On the whole, I am satisfied that they were the daily operating mind of Episode. Their knowledge should be imputed into Episode.

D7. Duty of Confidence / Duty Not to Misuse Confidential Information

D7.1 General principles

73.  Information obtained in employment can be categorised into 3 classes:- (1) trivial information, (2) confidential information, and (3) specific trade secrets: Faccenda Chicken Ltd v Fowler [1984] ICR 589. As clarified by Mr Wou, P’s stance is that the Confidential Information belongs to Class 2, i.e. information which was confidential, either because the employee was expressly told so, or because of its character, but which once learned necessarily remained in the employee’s head and became part of his own skill and knowledge applied in the course of his employer’s business.

74.  It is trite that so long as the employment continues, the employee cannot use or disclose Class 2 information without infidelity or breach of contract. When the employment has ceased, the employee can use his full skill and knowledge for his own benefit in competition with his former employer unless there is an enforceable express contractual provision restraining the employee from doing so.

75.  Examples of Class 2 information include e.g. list of customers, their contact information, their record of past purchase and the price offered. These are valuable information which, if disclosed to competitors, would enable them to tempt the plaintiff’s customers away. Given the nature of the information involved, there could not be any doubt in the mind of employees that the information in question was confidential information, particularly where authorized staff members were required to input a password so as to have access to the information: Dunamis International Co. Ltd. v Chan Hong Kit & Anor, DCCJ 1178/2009 (20 October 2010, unreported).

76.  A third party who receives confidential information is bound by a duty of confidence if he has notice. Whether a person has notice is an objective question to be assessed by reference to the standards of the reasonable person: Travel Counsellors Ltd v. Trailfinders Ltd [2021] EWCA Civ 38.

D7.2 Application to facts

77.  Whilst I would consider the matter in more details when dealing with individual allegations of breaches of duties, I take the view that, in general, the Confidential Information falls within “Class 2”, which Matthew, Jenny and Eugenie could not misuse in the course of employment with Eventmaster.

78.  First, the Confidential Information comprised emails received or sent, invoices, quotations, contracts, agreements, business strategies, documents sent and/or received by Eventmaster in relation to its clients. Eventmaster’s competitors could make use of the pricing information contained therein to fix a lower or more competitive price to tempt clients away.

79.  Second, it is Tony’s evidence that Eventmaster’s quotations and invoices were stored on the company’s Google Drive, which only the sales team could access. Salespersons/account managers were required to input a password so as to have access to the information. Such practice is confirmed by the testimony of Jenny and Eugenie, who agreed that such information has to be kept confidential. The only caveat is Jenny’s evidence that the salespersons may not necessarily upload all the quotations to the Google Drive. However, the mere fact that salespersons may not have dutifully uploaded all the quotations does not detract from the confidential nature of such document.

80.  Third, as the knowledge of Matthew and Jenny should be imputed into Episode, Episode also acquired notice of the confidence of the same. An obligation of confidence arose, and Episode was bound by a duty of confidence and could not use the Confidential Information to the detriment of Eventmaster.

81.  On the other hand, I am not convinced by the contrary arguments put forth by Mr Jeffrey Lai for Eugenie:

(1) First, he argues that other considerations (e.g. skills of product promotion and client management, experience, follow-up support, etc) might be more determinative and even Tony conceded that pricing was not the most important element in securing a deal. However, this does not detract from the fact that pricing remains (at least) a relevant consideration.

(2) Second, he says that Tony conceded that the price shown on quotation was not necessarily equal to the final price charged to the client, as the price and scope of service were subject to revision. Again, this misses the point. The fact that pricing information may be adjusted does not detract from its confidential nature in the first place.

(3) Third, he stresses that the quotation price itself does not even mean the final price offered to the potential client, as substantial discounts are offered to clients. Again, this by no means suggest that the quotation is unimportant – it is at least the starting point for price negotiations. Depending on the circumstances, it could also be the final price offered to and accepted by clients.

(4) In any case, Mr Jeffrey Lai accepts in his closing submissions that pricing information is “an important element on a quotation”.

E. Breaches of Duty

(a) Overview

E1. Breaches of duties by Matthew, Jenny and Eugenie

82.  Whilst I would consider the matter in more details when dealing with allegations pertaining to each client in turn, I consider it helpful to give an overview of breaches of duties by Matthew, Jenny and Eugenie.

83.  First, as explained above, I am prepared to draw adverse inference against Matthew given the lack of explanation for his failure to testify.

84.  Second, as explained above, I do not find Jenny and Eugenie to be credible witnesses. Further, I prefer the evidence of Tony and Jonathan to their evidence in the event of conflicts.

85.  Third, Jenny conceded in cross-examination that Matthew caused Episode to issue quotations since (at least) July 2019 whilst being employed by Eventmaster. Not surprisingly, Jenny sought to disassociate herself from this and claimed that she had no knowledge or involvement at the time. I do not find Jenny’s evidence credible. It is inherently improbable that, as fellow shareholder and director of Episode, Jenny had no idea that Matthew caused Episode to carry on a competing business since July 2019. Episode was set up by Matthew and Jenny in April 2019. It is unbelievable that they did not discuss the business or business plan of Episode throughout April to July 2019. Notably, they tendered resignations to Tony almost at the same time in mid-July 2019, which is suggestive of a coordinated gameplan. The truth is that Jenny must have discussed with Matthew, and she either agreed or was content to proceed with such gameplan.

86.  Fourth, even on her case, Jenny carried on a competing business via Episode at least after 14 August 2019 (albeit on the pretext that she was no longer bound by any duty towards Eventmaster). In the light of my finding that Jenny’s employment with Eventmaster continued until 30 September 2019, Jenny would have acted in breach of her duties even on her own case (i.e. during the period after 14 August up to 30 September 2019).

87.  Fifth, as examined below, contemporaneous evidence suggest that Matthew induced Eugenie to work for and provide Confidential Information to Episode from late 2019 to May 2020. It is inherently improbable that, as fellow shareholder and director of Episode, Jenny had no knowledge or involvement of the same.

88.  Sixth, Ds have not disclosed the quotations issued by Episode in these proceedings. At the very least, they should and could have been disclosed by Matthew, Jenny and Episode. Whilst it is not strictly necessary, the Court may draw adverse inference that such quotations, if disclosed, would militate against Ds’ case.

89.  I would now consider P’s allegations of breaches of duty with respect to each client or agent in turn. For ease of reference, I would deal with them in the sequence and by reference to the chronology adopted in P’s closing submissions, whilst addressing relevant evidence and submissions in parallel.

(b) Breaches of Duties whereby Eventmaster did NOT provide quotations

E2. PAG

90.  P relies on the following chronology of events:

Date	Events
13/6/2019	PAG’s Kirsten Lau’s email to info@eventionapp.com [i.e. an email address of Eventmaster]. Invitation to do Event registration; Tony forwarded Kirsten’s email to Jenny and Matthew. Eventmaster’s Jenny acknowledged Kirsten’s email.
20/6/2019	PAG email Eventmaster’s Jenny and asked for quotation
26/7/2019	Eventmaster’s Jenny confirmed registration of PAG Investment meeting
28/8/2019	Episode’s APP of PAG 2019 Hanoi updated
5/9/2019	PAG email Eventmaster’s Jenny re: PAG Investment Management Meeting 2019 (8-11 September 2019). It is written in the email: “for technical inquiries pls contact: support@episodemaker.com”
17/9/2019	Episode’s invoice to PAG re: PAG Investment Management 2019 in Hanoi prepared by Jenny Ngai; $150,000 ($210,000 less 28% discount) (Quotation #: Q20190717_PAG_v1.3)

91.  As shown from the above, PAG approached Eventmaster and asked for quotation in June 2019. In the end, no quotation was provided by Eventmaster to PAG. Instead, Episode was engaged to develop a software application (“APP”) for the PAG Investment Meeting held in Hanoi. As admitted in Ds’ Amended Defence, on 8 to 11 September 2019, Episode provided technological support services by building an APP for use in the PAG Investment Meeting.

92.  In her closing submissions, Jenny argued that PAG made inquiries with her shortly after her departure from Eventmaster and that the switch to Episode was the result of PAG’s choice. With respect, it is clear from the above that PAG approached Jenny in June 2019, well before her departure.

93.  In my view, Matthew and Jenny carried out a competing business via Episode since at least July 2019 to provide services to PAG.

94.  First, Tony forwarded PAG’s email in June 2019 to both Matthew and Jenny. Both of them were aware of such business opportunity from PAG, one of P’s Clients. The fact that neither of them caused Eventmaster to provide a quotation suggests that they must have concealed the request for quote from Eventmaster. Instead, as fellow shareholders and directors of Episode, they diverted such business opportunity to Episode.

95.  Second, according to information of Episode’s APP for PAG, it had been updated on 28 August 2019. As it would take time for the APP to be developed, surely Matthew and Jenny must have carried out a competing business in development of the APP via Episode for some time prior to 28 August 2019, i.e. in the course of their employment with Eventmaster.

96.  Third, the invoice for the PAG Investment Meeting was issued on 17 September 2019. It has a quotation number “Q20190717_PAG_v1.3”. According to evidence from P, the number format of Eventmaster’s quotations is “[year][date][client’s name]”. It is apparent that Episode’s number format for quotations follows a similar pattern (which is not surprising as the quotation was presumably prepared by either Matthew or Jenny). The quotation number constitutes evidence that Episode issued its quotation to PAG on 17 July 2019. It follows that Matthew and Jenny had worked on the matter since July 2019.

97.  As mentioned above, Ds did not disclose Episode’s quotations even though they should have been in a position to do so. Whilst it is not strictly necessary to rely on Ds’ failure to discover such quotations (as the quotation numbers should suffice), such failure could give rise to adverse inference that the quotations, if discovered, would militate against Ds’ case. This should apply, mutatis mutandis, to P’s allegations regarding other clients.

98.  Fourth, in the facebook page of Episode, there is a facebook post dated 9 September 2019 about the APP developed for the PAG Investment Meeting. The post stated as follows:- “It finally comes to the big day after two months preparation and development”. Evidently, Episode had been engaged for two months since July 2019, which tallies with the date of quotation. Upon being cross-examined, Jenny claimed that this was only an exaggeration. In my view, Jenny was plainly lying in order to cover up herself.

99.  Fifth, Jenny has been managing PAG all along and she issued the invoice to PAG on 17 September 2019 whilst being employed by Eventmaster. Consistent with the foregoing, the quotation on 17 July 2019 was likely issued by Jenny, while she was still in employment with Eventmaster. Alternatively, even if the quotation was issued by Matthew, he was also in employment with Eventmaster at that time.

100.  In the circumstances, I am satisfied that:

(1) Matthew and Jenny have acted in competition against Eventmaster via Episode and failed to pass on information about the business opportunity to Eventmaster, which is a breach of both fiduciary duty and duty of fidelity.

(2) Matthew and Jenny were still in employment and had access to the Confidential Information. They must have used the same to prepare a quotation package more competitive than that of Eventmaster would have provided, thereby breaching equitable duty of confidence and also the contractual Confidence Clause.

E3. AXA

101.  P relies on the following chronology of events:

Date	Events
07/08/19	Episode invoice AXA re: AXA HK MDRT day 2019 prepared by Matthew Chen $13,500 ($31,400 less 57% discount) (Quotation #: Q20190731_AXA)
23/08/19	Episode invoice AXA re: AXA Asia MDRT Event 2019 prepared by Matthew Chen; $50,000 ($288,400 less 82.65% discount) (Quotation #: Q20190604_AXA)
26/08/19	Episode APP of AXA Asia MDRT 2019 updated

102.  According to P, no quotation was provided by Eventmaster to AXA for the services covered by the two invoices from Episode. On the other hand, as admitted in Ds’ Amended Defence, Episode provided technological support services to AXA for the following two events:

(1) AXA HK MDRT in Hong Kong on 21 August 2019; and

(2) AXA Asia MDRT in Macau on 6 September 2019.

103.  In my view, Matthew carried out a competing business via Episode since June 2019 to provide services to AXA, one of P’s Clients.

(1) AXA, being one of P’s Clients, would likely have approached P (via Matthew) for quotation. Matthew must have concealed the request for quote from Eventmaster and he did not quote for Eventmaster either.

(2) Episode’s two invoices were issued by Matthew in August 2019 in the course of Matthew’s employment with Eventmaster.

(3) It is clear from the quotation numbers in Episode’s two invoices that the corresponding quotations were issued (presumably by Matthew) even earlier on 4 June 2019 and 31 July 2019.

104.  In her closing submissions, Jenny argued that AXA was not P’s client as P only provided services through an agent, Onstage. However, this does not really matter as Onstage is one of P’s clients in any case.

105.  In the circumstances, I am satisfied that:

(1) Matthew has acted in competition against Eventmaster via Episode and failed to pass on information about the business opportunity to Eventmaster, which is a breach of both fiduciary duty and duty of fidelity.

(2) Matthew was still in employment and had access to the Confidential Information. He must have used the same to prepare a quotation package more competitive than that of Eventmaster would have provided, thereby breaching his equitable duty of confidence and also the contractual Confidence Clause.

(3) Further, as fellow shareholder and director of Episode, Jenny must have assisted or otherwise agreed to proceed with the same. In this regard, I do not accept Jenny’s assertion that she was not aware of Matthew’s acts. In particular, Jenny’s allegation that she had agreed with Matthew to start operation and commence any business activity only after they leave Eventmaster is not borne out by evidence anyway.

E4. HK Land

106.  P relies on the following chronology of events:

Date	Events
30/4/2019	Matthew email Episode’s Business Registration Certificate to HK Land
26/9/2019	Episode invoice HK Land re: Bespoke Salon Opening Event, event date 25 October 2019, $68,000 (prepared by Jenny Ngai) (Quotation #: Q20190918_HKL)

107.  According to P, no quotation was provided by Eventmaster to HK Land for the services covered by the invoice from Episode. On the other hand, as admitted in Ds’ Amended Defence, on 25 October 2019, Episode provided technological support services for HK Land in the event of “Bespoke Salon Opening”.

108.  In her closing submissions, Jenny argued that Matthew was the main contact person for HK Land and she merely issued invoice to HK Land pursuant to Matthew’s instructions after she left Eventmaster. I do not find this credible. In my view, both Matthew and Jenny carried out a competing business via Episode in relation to HK Land against Eventmaster.

109.  First, HK Land was handled by Matthew when he was still in employment with Eventmaster. Matthew’s emailing of Episode’s business registration certificate to HK Land on 30 April 2019, right after Episode was incorporated on 25 April 2019, constitutes cogent evidence that Matthew sought to persuade HK Land to move with him to Episode.

110.  Second, it would appear from the chronology above that both Matthew and Jenny were involved and they have concealed HK Land’s request for quote from Eventmaster and they did not quote for Eventmaster either. As fellow shareholder and director of Episode, Jenny must have assisted or otherwise agreed to proceed with the same.

111.  Third, that Jenny agreed with and assisted Matthew is borne out by Jenny’s own evidence. According to Jenny, whilst Matthew continued to handle HK Land at Episode, she issued the invoice on 26 September 2019 upon Matthew’s request. Presumably Jenny issued the corresponding quotation on 18 September 2019. Contrary to Jenny’s assertion, she was still in employment with Eventmaster when she issued the invoice and the quotation in September 2019.

112.  Fourth, as explained above, I do not find Jenny to be a credible witness in any event.

113.  In the circumstances, I am satisfied that:

(1) Matthew and Jenny have acted in competition against Eventmaster via Episode. They also failed to pass on information about the business opportunity to Eventmaster, which is a breach of both fiduciary duty and duty of fidelity.

(2) At the time the quotation was issued, Jenny was still in employment and had access to the Confidential Information. She must have used the same to prepare a quotation package more competitive than that of Eventmaster would have provided, thereby breaching equitable duty of confidence and also the contractual Confidence Clause.

(3) The Bespoke Salon opportunity was a mature business opportunity, having regard to Matthew’s contact with HK Land since April 2019 and the issuance of Episode’s quotation shortly after Matthew left Eventmaster. Matthew has breached his fiduciary duty in appropriating such mature business opportunity.

(4) In any case, as fellow shareholders and directors of Episode, Matthew and Jenny assisted each other in breach of their duties.

E5. Prada

114.  P relies on the following chronology of events:

Date	Events
4/4/2019	Eventmaster Invoice Prada re: Prada Mode Hong Kong
6/11/2019	Episode invoice Prada re: Prada Mode London (prepared by Jenny Ngai), $80,000 ($205,000 less 61% discount) (Quotation #: Q20190724_Prada_v2.0)
29/1/2020	Episode invoice Prada re: Prada Mode Paris (prepared by Jenny Ngai), $80,000 ($172,000 less 53% discount) (Quotation #: N/A)

115.  According to P, no quotation was provided by Eventmaster to Prada for the services covered by the two invoices from Episode. On the other hand, as admitted in Ds’ Amended Defence, Episode has provided technological support services for Prada in the following events:

(1) “Prada Mode London” on 2 and 3 October 2019;

(2) “Prada Mode Paris” on 19 and 20 January 2020.

116.  In my view, Jenny carried out a competing business via Episode since at least July 2019 against Eventmaster.

117.  First, for the invoice issued by Jenny in relation to Prada Mode London on 6 November 2019, the corresponding quotation was issued on 24 July 2019. Jenny was still in employment with Eventmaster when she issued the quotation. In this regard, I do not accept Jenny’s assertion that she was only approached by Prada for Prada Mode London in September 2019.

118.  Second, as for the invoice issued by Jenny in relation to Prada Mode Paris on 29 January 2020, there was no quotation number stated on the invoice. Jenny claimed that she was only approached by Prada on that in December 2019. Presumably, if Jenny were right, the quotation would have been issued in or around December 2019, and plainly Ds could have disclosed it. Ds’ failure to disclose the quotation tends to suggest that the quotation, if disclosed, would militate against Ds, e.g. it was issued prior to 30 September 2019 whilst Jenny remained employed by Eventmaster. In any case, Prada’s request for quote would have happened even earlier.

119.  In the circumstances, I am satisfied that:

(1) By issuing two (or alternatively at least one) quotations of Episode to Prada while she was still in employment with Eventmaster, Jenny has acted in competition against Eventmaster and breached her fiduciary duties and duty of fidelity.

(2) As Eventmaster did not quote for the Prada Mode London and Prada Mode Paris events, Jenny must have concealed the request for quote from Eventmaster and she did not quote for Eventmaster either. She failed to pass on information which is a breach of both fiduciary duty and duty of fidelity.

(3) As Jenny was still in employment and had access to the Confidential Information, she must have used the same to prepare a quotation package more competitive than that of Eventmaster would have provided. As such, she has breached her equitable duty of confidence and the contractual Confidence Clause.

(4) Prada Mode Hong Kong, Prada Mode London, and Prada Mode Paris would appear to be a series of events similar in nature. Therefore, even if Episode’s quotation for Prada Mode Paris was issued after Jenny left Eventmaster, I accept that Prada Mode Paris was a mature business opportunity and Jenny has breached her fiduciary duty in appropriating the same.

(5) As fellow shareholder and director of Episode, Matthew must have assisted Jenny in acting in breach of her duties.

E6. Pico

120.  P relies on the following chronology of events:

Date	Events
5/5/2020	In her Google Note, Eugenie recorded Pico Mid-Dec 2020 AWE Exhibition (Karis $63,000), Nestle enquiry (PICO x Nestle); Eugenie modified Nestle leaflet (NAN virtual event proposal v4.pdf)
5/5/2020	Matthew whatsapp Eugenie. Matthew: and one more thing, we also need to discuss about ur arrangement, please give me a date that u could meet up; place to meet up is up to u, we come or u come Eugenie: 上次唔係講咗唔係話依家去到十月尾慢慢同客講做埋evention啲events先; 天日ok; Matthew: sure, when and where; Eugenie: 4pm at your office? Matthew: ok; FYI: For tomorrow meeting, we will give u some arrangement, like additional bonus, etc... and u also need to come up some ideas, we try to put it all together; Eugenie: okie; or can i come today??? 4pm Matthew: 突然咁急嘅 Eugenie: 有嘢同你傾 都pico 有個enquiry ok [Nan virtual event pro...pdf file sent] Matthew: 咁傾完一齊食飯定玩囉 ;5點嚟得唔得 [voice recording sent] Eugenie: 4:30啦 ; 我要諗諗; 5:30一起同客con call Matthew: OK Eugenie: 我早啲過來; 個客開完會; 隨時可con call Matthew: Ok
6/5/2020	Matthew whatsapp Eugenie document named “PICO Event on Mid of....docx” and “Quotation Template v...xlsx”to Eugenie; quotation template file found in Eugenie’s computer (Quotation Template v2.xlsx), Matthew: let me know ur final price to client Eugenie: Okie thanks;
6/5/2020	Eugenie modified Episode quote for Pico Mid-dec (PICO-Karis exhibition/PICO Event on Mid of Dec 20.pdf, PICO Event on Mid of Dec 20.docx) $18,000
11/5/2020	Eugenie modified Episode quote for Pico website development (pico-philip website/EPQ20200511_P.pdf, EPQ20200511_P.xlsx); signed by Eugenie; $82,000
14/5/2020	Eugenie modified Episode Quotation for Pico website and webinar in July 2020 (pico-Ringle china web/EPQ20200514_PCW.pdf, EPQ20200514.xlsx, PICO-Webinar_Platform_Development_1589439508.xlsx); $117,800
19/5/2020	Eugenie prepared pamphlet for Pico British council project, Webinar Platform (PicoxMatthew/British Council - Virtual Event Solution_14 May(2).pdf);
19/5/2020	Whatsapp between Matthew and Eugenie: Eugenie: 今早Pico個個天早卑個brief cost我ok? Matthew: before lunch Eugenie: ok; 同埋個website有啲貴 Matthew: website果度你可以同jenny and alex傾傾, 因為我呢幾日會好忙; Eugenie: 好ok Matthew: 真係唔得你再同我講 Eugenie: ok因為我哋做開最貴15萬; Matthew: 你有冇問過點解係呢個價;有咩function唔同 Eugenie:大致都知 Matthew: 記住唔好只用價錢嚟比較 Eugenie: 但冇諗過咁貴; 但個客會嘛; anyways我卑佢睇睇先 ; Matthew: 所以sales嘅價值先喺度, 如果唔係我整個platform畀客自己上去報價啦;唔使請咁多sales啦; Eugenie:我係怕佢會覺得咁搵返evention做咯 Matthew: 所以咪要分析囉
20/5/2020	Eugenie discussed Pico with Matthew. Eugenie: FOR pico; How about the working schedule? Matthew: 4-5 months

121.  In my view, Eugenie has worked for Episode in relation to Pico in competition with Eventmaster.

122.  First, on 5 May 2020, Eugenie received enquiries from Pico in relation to 2020 AWE Exhibition and Nestle. Yet, Tony was not made aware of such enquiries, and Eventmaster did not issue any quotation to Pico. In fact, Eugenie prepared quotations for Episode only, but not Eventmaster.

123.  Second, it is clear from Eugenie’s WhatsApp conversation with Matthew that she was working for Episode in relation to Pico. For instance, on 11 May 2020, Eugenie told Matthew that Pico was chasing her for UI/UX design and contents and that she would add this in the quotation. She even asked Matthew to send company stamp jpg to her (apparently so that she can copy and paste to Episode’s quotation) and asked him to create a company email for her (something like eugenie@episodemaker.com).

124.  Third, Episode’s quotations for Pico were found in Eugenie’s working computer. They were modified on 6, 11 and 14 May 2020. This tallies with Eugenie’s involvement in revising Episode’s quotation for Pico as reflected in the WhatsApp conversation with Matthew (e.g. Eugenie’s message on 11 May 2020).

125.  Fourth, Eugenie admitted working for Episode. When confronted at the 2^nd Meeting, Eugenie said she felt financially unsecure in view of COVID-19 and P’s performance, so she would like to work as freelance for additional income source. This is in effect an admission that Eugenie worked for Episode (albeit on a part-time basis). When cross-examined at trial, Eugenie also conceded she was working for Episode at that time and she was drafting Episode’s quotations for Matthew’s approval.

126.  Fifth, as pointed out by Mr Wou, Eugenie wanted Episode to win the deal with Pico, as she told Matthew in her WhatsApp message on 19 May 2020 that she was worried that Pico might prefer to engage Eventmaster as before (“我係怕佢會覺得咁搵返evention [i.e. Eventmaster] 做咯”).

127.  On the other hand, Mr Jeffrey Lai submits that the evidence could only show that Eugenie seemed to be making preparation to work or seemed to be working for Episode on a part-time basis. However, if the work done by Eugenie is inconsistent with Eventmaster, it is not a defence that she merely worked on a part-time basis. In this regard, it is difficult to see how it can be consistent with Eugenie’s duty to send quotation to and persuade an existing client of Eventmaster to move to Episode.

128.  Other arguments advanced by Mr Lai do not assist Eugenie either:

(1) Mr Lai stresses that the quotations prepared and signed by Eugenie are only drafts as they do not bear company chop and the title of Eugenie was stated as “Senior Account Manager” rather than “Business Manager” as reflected in WhatsApp conversation. Yet, there is no reason for Eugenie to sign the same if they are merely drafts. Alternatively, even assuming they were drafts, it is inherently improbable that the drafts were not finalized and issued by Episode. One must not forget that we only have the version found in Eugenie’s working computer at Eventmaster. Ds have not disclosed Episode’s quotations in these proceedings.

(2) Mr Lai says that whilst P alleges that Eugenie modified documents for Episode in relation to Pico, the evidence does not show what contents were modified and by whom the alleged modifications were made. However, P’s allegations are based on the record in Eugenie’s working computer. If modifications were made using such computer, the natural inference is that they were made by Eugenie. This is corroborated by the fact that Eugenie admittedly prepared Episode’s quotations and worked for Episode on a part-time basis.

(3) Mr Lai argues that there is no evidence showing that Pico intended to approach P for events in 2020. With respect, I cannot agree. Pico is one of P’s Clients, and Eugenie received enquiries from Pico on 5 May 2020 whilst she was employed by Eventmaster. Moreover, had Pico not approached P (or Eugenie in her capacity as employee of P), Eugenie would not have expressed her worry that Pico might prefer to engage Eventmaster as before.

(4) Mr Lai further argues that both Jenny and Eugenie confirmed under cross-examination that Pico did not award any deal to Episode. Whilst this might be relevant to P’s remedies (particularly if P is seeking an account of profits), it is difficult to see how this may operate as a defence for Eugenie.

129.  In the circumstances, I am satisfied that:

(1) Eugenie has concealed the request for quote from Eventmaster and she did not quote for Eventmaster either. She has acted in competition against Eventmaster and failed to pass on information which is a breach of both fiduciary duty and duty of fidelity.

(2) As Eugenie was still in employment and had access to the Confidential Information, and she wanted Episode to win, she must have used the Confidential Information to prepare Episode’s quotations. As such, she has breached her equitable duty of confidence and the contractual Confidence Clause.

(3) Matthew has assisted Eugenie in acting in breach of her duties.

(4) Further, as fellow shareholder and director of Episode, Jenny must have assisted or otherwise agreed to proceed with the same.

E7. CMHK

130.  P relies on the following chronology of events:

Date	Events
8/5/2020	Eugenie modified Episode’s quote for CMHK in her computer (CMHK/CMHK_Q.xlsx, CMHK_Q.pdf) re: RFID, $36,200
12/5/2020	Whatsapp between Matthew and Eugenie - Eugenie: 葵涌葵昌路51號九龍貿易中心第1座21樓Jason; 3pm; Bring your laptop borrr; Matthew: ok Eugenie: 一陣你show個sales kit bor如果有需要; Arrived Matthew: On the way 應該10分鐘到 Eugenie: Okie
15/5/2020	Matthew whatsapp Eugenie and further discussed CMHK - Matthew: CMHK just called me; CMHK jasson Eugenie: What for? Matthew: asking rfid solutions; 3000 guests, only 30 mins enter the event, how many rfid needed Eugenie: do you want me follow back? Or you can answer them? Matthew: up to u; ....... Matthew: u inform jason or i inform him? Eugenie: You la same. Or we can open a what’s app group; 3 of us Matthew: up to u 你係吾係開group呀?......

131.  In my view, Eugenie has worked for Episode in relation to CMHK in competition with Eventmaster.

132.  First, on 4 March and 8 May 2020, Eugenie modified a quotation of Episode relating to CMHK. Episode’s quotations and related documents were found in Eugenie’s working computer. Yet, Tony was not made aware of any invitation to quote and Eventmaster did not quote in this regard.

133.  Second, Eugenie met with the representative of CMHK together with Matthew on 12 May 2020 and they further discussed CMHK’s inquiries via WhatsApp on 15 May 2020. It is clear from contemporaneous documents that they were pitching CMHK on behalf of Episode.

134.  In this regard, Eugenie claimed to be representing Eventmaster when attending the pitching on 12 May 2020. During cross-examination, she alleged that she had duly informed the representative of CMHK that Matthew and her were representing different companies. I do not find this credible:

(1) It is inherently improbable that CMHK’s representative was content to meet both Matthew and Eugenie at the same time if they represented different companies.

(2) The WhatsApp conversation on 12 and 15 May 2020 suggest that they were pitching CMHK together as a team. For instance, on 12 May 2020, Eugenie asked Matthew to show the sales kit if necessary – she was plainly referring to the sales kit of Episode.

(3) In another WhatsApp message with Matthew on 26 May 2020 (shown as a message on the Tuesday following 20 May 2020), Eugenie told Matthew that Episode’s sales kit need improvement and that she would improve the same. This is corroborated by a screenshot of Eugenie’s working computer at Eventmaster that she had modified Episode’s sales kit (with file name “Sales Kit 20200526_v8.0pptx.pptx) on 26 May 2020.

(4) In cross-examination, Eugenie conceded that she was working for Episode and that she was drafting Episode’s quotation for CMHK on 8 May 2020 for Matthew’s approval. Plainly she was not representing Eventmaster. In fact, she has not prepared any quotation to CMHK for Eventmaster.

135.  Mr Jeffrey Lai further argues that, as confirmed by Eugenie, Episode did not win the deal with CMHK. Whilst this might be relevant to P’s remedies (particularly if P is seeking an account of profits), it is difficult to see how this may operate as a defence for Eugenie.

136.  In the circumstances, I am satisfied that:

(1) Eugenie has concealed the request for quote from Eventmaster and she did not quote for Eventmaster either. Instead, she prepared or modified quotations for Episode since March 2020. Eugenie has acted in competition against Eventmaster and failed to pass on information which is a breach of both fiduciary duty and duty of fidelity.

(2) As Eugenie was still in employment and had access to the Confidential Information, she must have used the Confidential Information to prepare Episode’s quotations. As such, she has breached her equitable duty of confidence and the contractual Confidence Clause.

(3) Matthew has assisted Eugenie in acting in breach of her duties.

(4) Further, as fellow shareholder and director of Episode, Jenny must have assisted or otherwise agreed to proceed with the same.

(c) Breaches of Duties whereby Eventmaster Provided (or was deemed to have provided) quotations

E8. AIA HK

137.  P relies on the following chronology of events:

Date	Events
5/12/2018	AIA HK email Eventmaster Matthew re: signed quotation with Eventmaster for AIA Oversea Event Annual Package 2019
14/12/2018	Matthew email AIA HK to confirm AIA Oversea Event Annual Package 2019
2/9/2019	Eventmaster quotations signed by Tony to AIA HK re: 2020 projects: CEO club ($71,500), MDRT Experience Trip 2020 ($71,500), The 32nd Summit Club in Denmark ($416,500), Premier Agency Leader Conference 2020 (PALC) ($178,500), PAL Summit ($71,500), MIB23 ($249,500), MDRT Global Conf 2020 ($178,500)
2/9/2019	Eventmaster Tony email AIA HK Fiona to discuss 2020 projects
unknown	Episode’s quotation document re: AIA quotation with package A: AIA for 32SC, PALC, MIB23, Free CEO Club 2020. and package B: all 2020 trips.
29/11/2019	AIA HK Connie Szeto email Eventmaster Tony said AIA HK appointed another convention app for Denmark convention in Apr 2020
11/12/2019	Online App Store shows AIA HK 海外會議 2020 App by Episode Limited, release date December 11, 2019 “海外會議 2020 is a mobile application for AIA Hong Kong & Macau Agents to join the year 2020 oversea trip event by being kept informed of event information to oversea trip anytime, anywhere”

138.  The following should not be in dispute:

(1) AIA HK had business dealings with Eventmaster since 2018.

(2) Each year, AIA HK would request quotes in one lot for all its “events trips” in the following year.

(3) The 2019 event trips were awarded to Eventmaster and handled by Matthew, as evidenced by Matthew’s email to AIA HK on 14 December 2018.

(4) On 2 September 2019, Tony provided Eventmaster’s quotations to AIA HK in relation to all 2020 event trips.

(5) Episode also provided similar quotes on an unknown date. As Matthew was the account manager of AIA HK, he continued to handle AIA HK at Episode as confirmed by Jenny during cross-examination. Episode’s quotation in relation to all 2020 event trips must be prepared by Matthew.

(6) On 29 November 2019, Eventmaster was informed by AIA HK that it had appointed another vendor (i.e. Episode) for one of the 2020 trips, the Denmark convention.

(7) Based on the APP in relation to AIA HK released by Episode on 11 December 2019, Episode has been awarded all the 2020 trips.

139.  There is, however, no concrete evidence as to the timing when quotations were issued by Episode to AIA HK. Insofar as Eventmaster is concerned, Tony provided quotations to AIA HK on 2 September 2019, and he was notified that AIA HK engaged another service provider on 29 November 2019. It is possible that Episode issued quotations after 31 August 2019, the last day of employment of Matthew with Eventmaster.

140.  Further, even assuming that Matthew has used the Confidential Information to prepare Episode’s quotations to AIA HK, it is possible that he only did so after his departure from Eventmaster. In relation to Class 2 information, when the employment has ceased, the employee can use his full skill and knowledge for his own benefit in competition with his former employer unless there is an enforceable express contractual provision restraining the employee from competing with his former employer after the termination of the employment: Union Knopf (HK) Ltd (supra), [20].

141.  That said, the onus is on Matthew to tell the Court the timing when quotations were issued by Episode to AIA HK, and adverse inference may be drawn against him for his failure to testify. It is, however, not strictly necessary for me to resolve this, given that P also contends that the 2020 event trips for AIA HK constituted a mature business opportunity, which I am prepared to accept based on Mr Wou’s submissions for P:

(1) Since AIA HK had engaged Eventmaster’s service in 2018 and 2019, it was likely that AIA HK would engage Eventmaster for the 2020 event trips if Eventmaster had quoted.

(2) Tony provided quotations on 2 September 2019, merely 2 days after Matthew left Eventmaster, and AIA HK would most likely have requested for a quote from Eventmaster some time ago, i.e. when Matthew was still in employment with Eventmaster. This would be a mature business opportunity present before Matthew left Eventmaster.

(3) Matthew was the person who signed the 2019 package with AIA HK for Eventmaster. It was his position with Eventmaster rather than a fresh initiative that led him to the 2020 event trips opportunity which he acquired.

142.  In the circumstances, I am satisfied that:

(1) Matthew has breached his fiduciary duty in appropriating a mature business opportunity.

(2) Further, as fellow shareholder and director of Episode, Jenny must have assisted or otherwise agreed to proceed with the same. In this regard, I do not accept Jenny’s assertion that she had no knowledge of the discussions and quotations between Episode and AIA HK.

E9. TVB

143.  P relies on the following chronology of events:

Date	Events
6/6/2019	Eventmaster Quotation to TVB re: Phase 1 enhancements and Phase 2 additional functions (signed by Matthew)
12/11/2019	Eventmaster Tony sent quotation to TVB Jennifer re: 2 games and additional function for website
22/11/2019	Eventmaster Tony sent quotation to TVB Jennifer
18/12/2019	Eventmaster Tony whatsapp TVB Jennifer to discuss a project. Tony said “We quote for 120K for UI/UX design (Website before)”
11/3/2020	Eventmaster Tony whatsapp with TVB Jennifer: Jennifer said “as you may already figured, we will not extend contract for now as PCL has not confirmed our deal”
9/4/2020	TVB signed contract with Episode, contract deemed to have commenced on 13 March 2020; $120,000
21/4/2020	Eugenie modified TVB 門路 file (proposal 2020/門路_Project_20200323(TVB).xlsx).

144.  The following should not be in dispute:

(1) Whilst still under employment, Matthew had been handling the TVB account. On 6 June 2019, he prepared a quotation to TVB regarding Phase 1 enhancements and Phase 2 additional functions.

(2) Tony testified that the quotation on 6 June 2019 was for the “Mun Road (門路)” project which comprised Phase 1 and Phase 2:

(a) Phase 1 involved a mobile app, a start-up program, and a content management system (“CMS”);

(b) Phase 2 is an enhancement based on the items developed in Phase 1, including the CMS;

(3) On 12 November 2019, Tony sent an email to TVB regarding the Mun Road Game Quotation with a quotation attached, saying that the product will be ready by early April.

(4) On 22 November 2019, Tony sent a quotation to TVB on the Mun Road Website by WhatsApp. According to Tony, Eventmaster quoted for “UI/UX” service for Phase 2 at HK$120,000.

(5) On 11 March 2020, TVB told Tony by WhatsApp that “as you may already figured, we will not extend contract for now as PCL has not confirmed our deal”. Tony said this meant Eventmaster lost the deal for Phase 2.

(6) On 9 April 2020, Episode entered into a service contract with TVB which was deemed to have commenced on 13 March 2020. The service fee for the contract was HK$120,000. The contract contained the project name Mun Road and the “CMS” phrase.

145.  In my view, the above suggests that the work for Phase 2 of the Mun Road project was a mature business opportunity. In particular:

(1) When Matthew sent Eventmaster’s quotation to TVB on 6 June 2019, such quotation covered both Phase 1 and Phase 2 of the Mun Road project.

(2) Whilst Eventmaster provided further quotations to TVB in November 2019, they do not detract from the nature of the division of the work into Phase 1 and Phase 2.

(3) P’s case that the contract awarded to Episode corresponds to Phase 2 of the Mun Road project is borne out by (i) the identical contract sum / quote of HK$120,000, (ii) the similar timing of the commencement of service contract in March / April 2020 and (iii) references to Mun Road and CMS in the contract with Episode.

(4) As TVB had engaged Eventmaster for Phase 1 of the Mun Road project, TVB would likely engage Eventmaster for Phase 2. It was Matthew’s position with Eventmaster rather than a fresh initiative that led him to Phase 2 opportunity which he acquired.

146.  In the circumstances, I am satisfied that:

(1) Matthew has breached his fiduciary duty in appropriating a mature business opportunity.

(2) Further, as fellow shareholder and director of Episode, Jenny must have assisted or otherwise agreed to proceed with the same. In this regard, I do not accept Jenny’s assertion that she had no knowledge of the discussions and quotations between Episode and TVB.

147.  Separately, a document entitled “proposal 2020/門路_Project_20200323(TVB).xlsx” was created and modified in Eugenie’s working computer with Eventmaster on 21 April 2020. Eugenie admitted that Mattew gave her the file (which was about the Mun Road project) to follow up.

148.  In response, Mr Jeffrey Lai says there is no evidence to show what contents were modified and whether Eugenie made the alleged modifications. However, if modifications were made using Eugenie’s computer, the natural inference is that they were made by Eugenie.

149.  Mr Lai further argues that modification of the quotation would be weird and unnecessary, as the relevant service contract was already signed between TVB and Episode on 8 April 2020. Whilst I can see the force of Mr Lai’s argument, it is not a defence if Eugenie did work for a competitor by modifying its quotation (which remained a breach). Rather, Mr Lai’s argument goes to the question whether P suffered any loss as a result of such breach (which I would address later at the assessment of loss).

150.  In the circumstances, I am also satisfied that:

(1) Eugenie was working for Episode in relation to the Mun Road project for TVB since at least April 2020. She has assisted a competitor, and breached her fiduciary duty and duty of fidelity.

(2) Matthew must have assisted or induced Eugenie to act in breach of her duties.

(3) Further, as fellow shareholder and director of Episode, Jenny must have assisted or otherwise agreed to proceed with the same.

151.  For completeness, I should mention that P also sought to argue that Eugenie was involved with the Mun Road project even before April 2020. However, there is no documentary evidence in support of the same.

E10. Bentley

152.  P relies on the following chronology of events:

Date	Events
before 27/11/2019	Eugenie disclosed by whatsapp confidential tender info of Bentley re: HKJC project to Jenny. She disclosed to Jenny that Bentley is pitching again for the HKJC project and disclosed Eventmaster’s price in 2018
27/12/2019	Episode Quotation to Bentley re: HKJC 2020 project (Q20191223_Bentley.pdf, $707,600) (signed by Matthew, related files found on Eugenie’s computer: hkjc/Q20191223_Bentley.pdf, HKJC phil for better cities forum 2020.pdf)
15/1/2020	Eventmaster quotation to Bentley HKJC 2020 Forum $485,200 (prepared by Eugenie)
30/1/2020	Bentley signed Eventmaster quotation, but only for the amount of $72,000 (Q20200124_BJR1 $72,000)
13/2/2020	Eventmaster Invoice to Bentley HKJC Forum 2020 $72,000

153.  In addition, P relies on screenshot showing that Eugenie modified Episode’s quotation in relation to Bentley on 21 April and 7 May 2020.

154.  In my view, there is insufficient evidence to establish that Eugenie has worked for Episode in relation to Bentley and HKJC or otherwise engaged in competition against Eventmaster in relation to the same.

155.  First of all, whilst Eugenie told Jenny in November 2019 that Bentley was pitching again for the HKJC project, she was asking Jenny to share with her the quotation as she could not find it herself. It was for such purpose that Eugenie sent the tender info and mentioned the 2018 price to Jenny so that Jenny could tell which quotation she was looking for. This is borne out by Jenny’s response that it was Matthew’s deal and maybe Matthew would know as he was involved. Reading the WhatsApp conversation as a whole, Eugenie was merely seeking help from Jenny on this occasion.

156.  Second, Eugenie did prepare a quotation for Eventmaster to Bentley relating to the HKJC project on 15 January 2020 in the amount of HK$485,200.

157.  Third, on 27 December 2019, Matthew sent Episode’s quotation to Bentley relating to the HKJC project in the amount of HK$707,600. Whilst Episode’s quotation was found in Eugenie’s computer, Eugenie explained that a third-party quotation was requested by Bentley in the tender process, and hence she talked to Matthew and asked Episode to issue a quotation to Bentley: “搵Episode出張報價”. Apart from that, there is no documentary evidence of Eugenie’s involvement in preparing Episode’s quotation in December 2019. In this regard, any modifications made in April or May 2020 would have no bearing on the quotations made by Episode and Eventmaster in December 2019 and January 2020 respectively.

158.  Fourth, as acknowledged by Mr Wou, the service items quoted in the quotations by Episode and Eventmaster are not the same. Whilst there is a common item “Mobile App”, Eventmaster quoted a price of $250,000 whilst Episode misquoted a figure of HK$160,000, when the correct figure should be HK$320,000 (based on the stated man-days and unit rate). In other words, the price quoted by Episode is in fact higher.

159.  For completeness, I should mention that Bentley did engage Eventmaster for some other service items in the amount of $72,000, whilst Bentley did not award any contract to Episode.

E11. HKTB

160.  P’s case against Eugenie in relation to HKTB is that, on 11 February 2020, Eugenie sent an email to Matthew disclosing HKTB’s invitation to tender for a “HK Dragon Boat Festival 2020” event. P says Eugenie acted in breach by competing against Eventmaster, and she also breached the Confidence Clause and her duty of confidence.

161.  In my view, there is insufficient evidence to establish that Eugenie has acted in breach.

162.  First, Eugenie accepted that an invitation to tender from HKTB was sent to Eventmaster in about February 2020. Her explanation is that she was tasked to handle it and she sent it to Matthew to seek his assistance and guidance, as he handled HKTB events during his employment with Eventmaster. Whilst Eugenie’s explanation may seem dubious, it is not P’s case that Episode competed by issuing a quotation in parallel. On balance, this tends to suggest that Eugenie was indeed seeking help on this occasion.

163.  Second, Eugenie’s evidence is that she did issue a quotation for Eventmaster to HKTB and Eventmaster did secure the deal, which was only cancelled subsequently due to the COVID-19 pandemic. Whilst Tony has not confirmed the same, he has not denied it either. It is also P’s pleaded case that a quotation was provided by Eventmaster to HKTB but the event was later cancelled. The fact that Eugenie went ahead to issue quotation for Eventmaster suggests that she was not trying to divert business away from Eventmaster.

E12. Lore

164.  P relies on the following chronology of events:

Date	Events
4/5/2020	Email from Lore to Eventmaster Eugenie re: request for quotation
6/5/2020	Eugenie whatsapp Matthew re: LORE Ltd Jan 2021 (one-night event, exact date TBC), then Eugenie said: 你3點前打畀我ok? 仲有pico個個ringle
6/5/2020	Eugenie modified Episode quote for Lore Annual Dinner (Lore Ltd.pdf) $120,200
1/6/2020	Eventmaster Tansy Cheung emails quotation to Lore Emme re: Annual Dinner $120,200

165.  In gist, P’s case against Eugenie in relation to Lore is as follows:

(1) Eugenie disclosed Lore’s invitation to tender and the relevant information to Matthew via WhatsApp on 6 May 2020; and

(2) Eugenie modified Episode’s quotation in relation to Lore on 6 May 2020.

166.  In my view, Eugenie has worked for Episode in relation to Lore in competition with Eventmaster.

167.  First, Eugenie was already working for Episode since March 2020 (for CMHK), April 2020 (for TVB) and early May 2020 (for Pico). Consistent with the foregoing, it is likely that Eugenie was also working for Episode in relation to Lore in early May 2020.

168.  Second, since receiving Lore’s invitation to tender on 4 May 2020, Eugenie never prepared or issued any quotation for Eventmaster up till 29 May 2020 when her employment was terminated. In contrast, she prepared a quotation on 6 May 2020, apparently for Episode.

169.  In this regard, Eugenie did claim in her witness statement that she was asked to handle Lore and she sent Matthew information to seek guidance and assistance from him. Mr Jeffrey Lai further argues that the quotation found in Eugenie’s computer does not contain any letterhead, signature or company chop, and there is no evidence to show what contents were modified and by whom such alleged modifications were actually made.

170.  Nevertheless, given that the quotation was found in Eugenie’s computer and shown to be modified by the user of such computer, the natural inference is that it was modified by Eugenie. Moreover, the document was contained in a folder named “Lore Ltd”, which is in turn found in a folder named “EP”. It is evident that the folder named “EP” contains documents relating to Episode, including files named “EPISODE-IntroductionV0.1.pdf” and “Sales Kit 20200526_v8.0pptx.pptx”.

171.  In any case, Eugenie did accept in her testimony that she was drafting quotations for Episode for approval by Matthew at least since April 2020 (for TVB) or early May 2020 (for Pico).

172.  On balance, I find that the quotation for Lore was prepared or modified by Eugenie for Episode.

173.  Third, whilst Eventmaster issued a quotation to Lore on 1 June 2020, such quotation was prepared and issued by another staff of Eventmaster (Tansy Cheung), as opposed to Eugenie whose employment was terminated on 29 May 2020. Indeed, the fact that such quotation could be prepared and issued promptly by Eventmaster 3 days after termination of Eugenie’s employment, begs the question as to why Eugenie never prepared and issued a quotation for Eventmaster from 6 to 29 May 2020 (a period of over 3 weeks).

174.  In the circumstances, I am satisfied that:

(1) Eugenie has concealed the request for quote from Eventmaster and she did not quote for Eventmaster either. By preparing Episode’s quotation, Eugenie has acted in competition against Eventmaster and failed to pass on information which is a breach of her fiduciary duty and duty of fidelity.

(2) Eugenie was in employment with Eventmaster and had access to the Confidential Information, but she misused and disclosed the same to Matthew and Episode. In particular, she disclosed Lore’s invitation to tender to Matthew and Episode. In doing so, she invited or prompted Episode to compete and provide a quotation for Lore. The email from Lore constitutes part of the Confidential Information. As such, she has breached her equitable duty of confidence and the contractual Confidence Clause.

(3) Matthew has assisted Eugenie in acting in breach of her duties.

(4) Further, as fellow shareholder and director of Episode, Jenny must have assisted or otherwise agreed to proceed with the same.

E13. HKFWS

175.  P relies on the following chronology of events:

Date	Events
19/5/2020	Eugenie modified quote for Episode for HKFWS (G-Five Erica 2020/EPQ20200515_G $25W.xlsx, EPQ20200515_GW.xlsx) $230,400 ($256,000 less 10% discount)

176.  In gist, P’s case is that Eugenie modified Episode’s quote for HKFWS on 19 May 2020 (and also on 14 May 2020).

177.  In response, Eugenie admitted that she was asked to manage EventMaster’s pursuit of collaboration opportunities with HKFWS but denied that she had concealed from Eventmaster any business opportunity from HKFWS. Mr Jeffrey Lai also argues that the quotations found in Eugenie’s computer are unsigned, undated, without company chop, and without the title of the person in charge, and hence they are not final drafts.

178.  In my view, Eugenie did work for Episode in relation to these quotations for HKFWS.

(1) Eugenie did modify Episode’s quotation for HKFWS in the amount of $230,400 on 14 and 19 May 2020 as the relevant computer files were found in her working computer.

(2) Although Eugenie denied she was quoting for Episode, the quotation was prepared in the format and layout of an Episode’s quotation. The files are contained in a folder named “G-five Erica 2020” which is in turn located in a folder named “EP” containing documents relating to Episode. Further, Eugenie was admittedly working for Episode since April or early May 2020.

(3) The file names of the quotations are “EPQ20200515_GW” and “EPQ20200515_GW.xlsx”, which suggest they are quotations of Episode (“EPQ” most likely stands for Episode’s quotation) dated 15 May 2020. Moreover, the contents of the second file also contain such quotation number “EPQ20200515_GW”. All these suggest that the quotations were modified by Eugenie for Episode in mid-May 2020 (when she admittedly worked for Episode).

179.  In the circumstances, I am satisfied that:

(1) Eugenie has concealed the request for quote from Eventmaster and she did not quote for Eventmaster either. By preparing Episode’s quotation, Eugenie has acted in competition against Eventmaster and failed to pass on information which is a breach of her fiduciary duty and duty of fidelity.

(2) Eugenie had access to the Confidential Information at that time. As she was working for Episode, it is more likely than not that she has misused the Confidential Information in preparation of Episode’s quotation for HKFWS. As such, Eugenie has breached her duty of confidence and the Confidence Clause.

(3) As fellow shareholders and directors of Episode, Matthew and Jenny have assisted Eugenie in acting in breach of her duties.

(d) Other Breaches

E14. CBRE GWS

180.  P relies on the following chronology of events:

Date

Events

24/12/19

Eventmaster received an email from CBRE GWS confirming that Jenny has won a quotation. Eugenie whatsapp Jenny and told her about the email; In the whatsapp conversation: Eugenie: Jenny你有冇同佢簽嗰quotation啊? Jenny: Oh fuck Eugenie: hhahah Jenny: She sent to my previous email Eugenie: you client now right??? Jenny: Yaaa Eugenie: hahahah I can guess; hahahahah Jenny: Did Tony say anything [emoji]? Eugenie: [voice recording sent] 唔緊要我cover得好就得 [icon] Jenny: Let me think think... [emoji] Thank youuuu. Maybe just simply say following up. No need to explain that much. If he ask why the client emailed Jenny, then just say because I'm out of town, 覆得唔好, so I forgot to ask client to email u.

181.  P's allegation against D4 in relation to CBRE GWS is that D4 failed to disclose the business opportunity of CBRE GWS to P in about December 2019.

182.  It is not in dispute that:

(1) CBRE GWS used to be Jenny’s client when she was working with Eventmaster;

(2) As shown by the email dated 24 December 2019 from CBRE GWS, Jenny had won a project with CBRE GWS for Episode.

183.  P’s complaint is that when Tony asked Eugenie if Eventmaster had any new project with CBRE GWS, Eugenie did not tell the truth but helped Jenny to cover up the fact that Episode provided technological support services for CBRE GWS and the email was sent by mistake to Eventmaster. She failed to disclose to P that Jenny had won a project with CBRE GWS.

184.  In my view, this does not amount to breach of duty on Eugenie’s part. According to Eugenie, she told Tony that CBRE GWS was not the client of Eventmaster at the material time. Even assuming that Eugenie was lying and she covered up for Jenny as alleged by P, she was not concealing a business opportunity because, by the time she realised what happened, CBRE GWS had already awarded the deal to Episode. There is no evidence to suggest that Eugenie had any prior knowledge as to how Jenny or Episode secured the deal.

E15. DBS and Streaming Services

185.  P relies on the following chronology of events:

Date	Events
20/4/2020	Eventmaster invoice DBS webinar
28/4/2020	Eugenie whatsapp confidential Webinar internet link to Jenny. Eugenie: 一陣三點live; 你可以提提睇睇;唔好打任何嘢; for你哋reference Jenny: Live streaming? Eugenie: yes
18/5/2020	Eventmaster invoice DBS re: RSVP Livestreaming
22/5/2020	Eugenie whatsapp Eventmaster’s pricing information regarding DBS and livestreaming services to Jenny

186.  In gist, P’s case against Eugenie is as follows:

(1) Eugenie disclosed to Jenny via WhatsApp P's strategy of webinar and quotation price for DBS and the access information of DBS's online event on 28 April 2020;

(2) Eugenie disclosed pricing information regarding DBS and livestreaming services to Jenny via WhatsApp on 22 May 2020.

187.  In my view, Eugenie has acted in breach of duties by disclosing confidential information to Jenny.

188.  First, it is clear from Eventmaster’s invoices that it was providing webinar and livestreaming services to DBS. I am prepared to accept that, at the time, webinar solution was a new concept for event management under the COVID-19 pandemic situation and a new business strategy of Eventmaster, which forms part of the Confidential Information. By sharing the webinar internet link to Jenny and asking her not to type anything, it is evident that Eugenie disclosed such new concept and business strategy to Jenny discreetly such that Jenny and Episode may take advantage of the same.

189.  Second, the DBS event was jointly operated by Eventmaster and another production house called Vision Media (Hong Kong) Limited (“Vision Media”) with the livestreaming service provided by the latter. Jenny testified that it is difficult to secure livestreaming service (“Livestreaming公司好難搵”). As such, I am prepared to accept that Eventmaster’s livestreaming prices (including pricing information of Vision Media) forms part of the Confidential Information. As Eugenie disclosed such pricing information to Jenny, Episode could make use of the same to compete with Eventmaster.

190.  Third, the arguments advanced for Eugenie do not undermine the foregoing:

(1) Mr Jeffrey Lai emphasises that the price disclosed was the pricing information of Vision Media. However, given the novelty of the business concept and the difficulty in securing livestreaming service, such pricing information is of importance at the time.

(2) Mr Lai then says the DBS event was open to whoever interested for online registration and webinar solution was not a concept uniquely developed by Eventmaster. However, the mere fact that one may discern the new business strategy by collating and analysing publicly available information does not mean that such business strategy itself is not confidential.

(3) Mr Lai further stresses that Eventmaster’s total revenue from DBS had increased significantly from HK$67,000 in 2019 to HK$399,600 in 2020 despite the alleged leakage of information by Eugenie. However, this is a point against Eugenie, as it only reinforces the need for confidentiality of the new business strategy in view of its great potential and exponential growth.

(4) Mr Lai further characterises the WhatsApp conversation between Eugenie and Jenny as friendly sharing of price reference between two practitioners in the same industry. This overlooks the fact that Eugenie was working for Episode since at least March, April or early May 2020.

191.  In the circumstances, I am satisfied that:

(1) Eugenie breached her duty of confidence and the Confidence Clause, and she also breached her fiduciary duty and duty of fidelity.

(2) Jenny assisted Eugenie in breach of her fiduciary duties.

(3) As fellow shareholder and director of Episode, Matthew must have assisted or otherwise agreed to proceed with the same.

E16. UBS

192.  P's allegation against Eugenie in relation to UBS is that she sent to Matthew information relating to UBS forum via WhatsApp between 31 August and 31 October 2019.

193.  However, as pointed out by Mr Jeffrey Lai, no date is shown in the subject WhatsApp conversation between Matthew and Eugenie, and the UBS link referred to by Matthew in the WhatsApp conversation was sent out on an unknown date in 2019. Further, there is no other evidence of any further follow-up or business development by Episode. Based on the WhatsApp conversation alone and assuming that it took place between 31 August and 31 October 2019 (shortly after Matthew’s departure), one could not rule out the possibility that Eugenie was seeking Matthew’s guidance on such occasion.

194.  In the circumstances, there is insufficient evidence to establish that Eugenie acted in breach of her duties.

(e) Summary of Conclusion

195.  To conclude, I find that there are breaches of duty in relation to the following clients and/or agents:

(1) PAG;

(2) AXA;

(3) HK Land;

(4) Prada;

(5) Pico;

(6) CMHK;

(7) AIA HK;

(8) TVB;

(9) Lore;

(10) HKFWS; and

(11) DBS and streaming services.

196.  Among the foregoing, Matthew and Jenny (but not Eugenie) were involved in the following:

(1) PAG;

(2) AXA;

(3) HK Land;

(4) Prada; and

(5) AIA HK;

197.  In addition, Matthew, Jenny and Eugenie were involved in the following:

(1) Pico;

(2) CMHK;

(3) TVB;

(4) Lore;

(5) HKFWS; and

(6) DBS and streaming services.

198.  On the other hand, I find that there is insufficient evidence to establish breaches of duty in relation to the following clients and/or agents:

(1) Bentley / HKJC;

(2) HKTB;

(3) CBRE GWS; and

(4) UBS.

F. Dishonest Assistance

199.  It is P’s case that:

(1) Matthew, Jenny and Episode dishonestly assisted each other in breach of their equitable duties; and

(2) Matthew, Jenny and Episode dishonestly assisted Eugenie in breach of her equitable duties.

F1. Relevant principles

200.  The relevant principles on dishonest assistance have been helpfully summarised by DHCJ Eugene Fung SC (as he then was) in Hui Cheung Fai v Daiwa Development Ltd (unrep., HCA1734/2009, 8 April 2014):

(1) There are four requirements for the imposition of liability for dishonest assistance: (1) a breach of trust or fiduciary duty by someone other than the defendant, (2) the defendant’s assistance, (3) dishonesty, and (4) resulting loss (at [130]).

(2) Dishonesty is an objective standard. The courts apply the normally acceptable standards of honest conduct in determining whether the accessory is dishonest. There is no requirement of conscious dishonesty; the test for dishonesty does not require that the accessory considers that he is acting dishonestly (at [131]).

(3) However, when deciding whether the accessory is dishonest, the court also takes into account the circumstances known to him at the time he acted, personal attributes such as his experience and intelligence, and the reason why he acted as he did (at [132]).

(4) The accessory has the requisite dishonest state of mind if he deliberately closes his eyes and ears, or deliberately refrains from asking questions, lest he learns something he would rather not know, and then proceeds regardless (at [133]).

(5) Dishonesty must not be equated with negligence or a failure to exercise reasonable skill (at [134]).

(6) Dishonesty is a serious allegation. The more serious the allegation sought to be proved is, the more cogent the evidence relied upon to support it must be (at [83]).

F2. Dishonest assistance among Matthew, Jenny and Episode

201.  I find that Matthew, Jenny and Episode dishonestly assisted each other in breach of their equitable duties in relation to the following:

(1) PAG;

(2) AXA;

(3) HK Land;

(4) Prada; and

(5) AIA HK.

202.  First, I have found that Matthew and Jenny acted in breach of their fiduciary duties and duty of confidence in relation to these clients, and their knowledge should be imputed into Episode. As such, Episode should also be in breach of the duty of confidence.

203.  Second, Matthew and Jenny (and in turn Episode) must have assisted each other, having regard to the following:

(1) In April 2019, Matthew and Jenny set up Episode to compete with Eventmaster with a view to diverting business opportunities and procuring customers away from Eventmaster. On the evidence, they diverted business opportunities to Episode since at least June 2019 while they were both employed by Eventmaster.

(2) In addition, Matthew and Jenny have procured employees away from Eventmaster. On the evidence, they have asked Karis (still employed by Eventmaster) and Erik (employed by sister company of Eventmaster) to become shareholders of Episode. During the 1^st Meeting on 29 May 2020, many staff of Eventmaster said they had been approached to move to Episode. Moreover, Eugenie admitted working for Episode since April or early May 2020.

(3) Matthew and Jenny were fellow shareholders and directors of Episode. Together they held 60% shares in Episode. According to Jenny’s testimony, she had told Matthew about the projects of PAG and Prada, and Matthew had told her about the projects of AXA, HK Land and AIA HK – indeed they were the only two staff members working for Episode up to May 2020.

(4) All these suggest that Matthew and Jenny must have joined force and worked together to assist each other in their breaches of duties.

204.  Third, Matthew, Jenny and Episode acted dishonestly:

(1) The diversion of business opportunities, customers and employees of a company by its employee plainly fall outside normally acceptable standards of honest conduct.

(2) Objectively, Matthew and Jenny should know the same, having regard to personal attributes such as experience and intelligence:

(a) Matthew joined Eventmaster in 2016 as business manager. He was responsible for sales work and leading the sales team until 31 August 2019, which is a testament to his substantial commercial acumen and experience.

(b) Jenny joined Eventmaster in 2017 as an account manager. She graduated from university and was responsible for sales work until 30 September 2019. She also possessed substantial commercial acumen and experience.

(3) Matthew and Jenny’s knowledge was imputed into Episode as they were the directing minds and will of Episode.

205.  Fourth, I am satisfied that resultant loss is caused, which I would address in the assessment of equitable compensation or damages.

206.  In the premises, Matthew, Jenny and Episode are jointly and severally liable for the breaches of fiduciary duties in relation to PAG, AXA, HK Land, Prada and AIA HK.

F3. Dishonest assistance of Eugenie by Matthew, Jenny and Episode

207.  I find that Matthew, Jenny and Episode dishonestly assisted Eugenie in breach of her equitable duties in relation to the following:

(1) Pico;

(2) CMHK;

(3) TVB;

(4) Lore;

(5) HKFWS; and

(6) DBS and streaming services.

208.  First, I have found that Eugenie acted in breach of her fiduciary duties and duty of confidence in relation to these clients.

209.  Second, Matthew and Jenny (and in turn Episode) must have assisted each other, having regard to the following:

(1) Eugenie was working for Episode since at least March 2020 (for CMHK), April 2020 (for TVB) or early May 2020 (for Pico).

(2) For similar reasons set out in paragraph 203 above, Matthew and Jenny must have assisted Eugenie in her breach of equitable duties.

210.  Third, Matthew, Jenny and Episode acted dishonestly:

(1) Anyone with common sense and reasonable commercial acumen would know that it is dishonest to cause an employee to disclose confidential information and prepare quotations for a competitor.

(2) For similar reasons set out in paragraph 204 above, Matthew and Jenny should know the same.

(3) In particular, Matthew and Jenny well knew Eugenie’s position and responsibilities in Eventmaster but they still used her as an “insider”.

(4) Matthew and Jenny’s knowledge was imputed into Episode as they were the directing minds and will of Episode.

211.  In the premises, Matthew, Jenny, Episode and Eugenie are jointly and severally liable for the breaches of Eugenie’s equitable duties in relation to Pico, CMHK, TVB, Lore, HKFWS, and DBS and streaming services.

G. Procurement to Breach of Employment Contract

212.  It is P’s case that Matthew induced Eugenie to work for Episode in breach of her employment contract.

213.  The ingredients of the tort of inducing breach of contract are as follows:

(1) First, there must be a contract;

(2) Second, there must be a breach of that contract;

(3) Third, the conduct of the relevant defendant must have been such as to procure or induce that breach;

(4) Fourth, the relevant defendant must have known of the existence of the relevant term in the contract or turned a blind eye to the existence of such a term; and

(5) Fifth, the relevant defendant must have actually realised that the conduct, which was being induced or procured, would result in a breach of the term.

See: OBG Ltd v Allan [2008] 1 AC 1; Union Knopf (HK) Ltd (supra)

214.  The first ingredient is satisfied by the employment contract between Eventmaster and Eugenie, which was in force until 29 May 2020.

215.  The second ingredient is satisfied given my findings that Eugenie worked for Episode (in breach of her duty of fidelity and the No Outside Business Clause) and disclosed Confidential Information (in breach of the Confidence Clause and her duty of fidelity) in relation to Pico, CMHK, TVB, Lore, HKFWS, and DBS and streaming services.

216.  The third ingredient is satisfied having regard to the following:

(1) Eugenie testified that Matthew first asked her to work part-time for Episode back in October to December 2019;

(2) On the evidence, I accept that Eugenie worked for Episode at least since March 2020 (for CMHK and HKFWS), April 2020 (for TVB and DBS) and early May 2020 (for Pico and Lore).

(3) As shown from the WhatsApp conversation between Matthew and Eugenie, they were discussing Eugenie’s employment terms and title with Episode since early May 2020.

(4) At the 2^nd Meeting held on 29 May 2020, Eugenie told Tony and Jonathan that she signed a part-time contract with Episode in May 2020, and she received 10% to 12% commission from Episode. Eugenie also confirmed the same in her oral testimony.

(5) In the premises, the conduct of Matthew must have been such as to procure or induce Eugenie’s breach of her employment contract.

217.  As to the fourth ingredient, Matthew must have known of the existence of the relevant terms in the contract:

(1) In his former capacity as Eugenie’s superior officer at Eventmaster, Matthew must have known that Eugenie’s employment contract contained the No Outside Business Clause and the Confidence Clause;

(2) As such clauses existed in the employment contracts of Matthew and Jenny, Matthew knew or should have realized they would also exist in Eugenie’s employment contract;

(3) Any ordinary and reasonable person would and should know that, as employee of Eventmaster, Eugenie should be subject to a duty of fidelity and should not act in competition with Eventmaster or disclose confidential information to its competitor.

218.  Alternatively, if Matthew did not care to find out, he would have turned a blind eye to the existence of such terms.

219.  The fifth ingredient is also satisfied here because Matthew must have realized that Eugenie’s conduct as induced by him, namely acting in competition with Eventmaster and disclosing confidential information to its competitor whilst she was still in employment with Eventmaster, would result in the breach of the express terms (the No Outside Business Clause and the Confidence Clause) and the implied term (duty of fidelity) of her employment contract.

220.  In the premises, Matthew is liable for inducement to breach of employment contract. Hence, Matthew and Eugenie are jointly and severally liable for breaches in duty in relation to Pico, CMHK, TVB, Lore, HKFWS, and DBS and streaming services.

H. Conspiracy to Injure by Unlawful Means

221.  It is P’s case that Matthew and Jenny conspired with the purpose to injure Eventmaster by unlawful means (“Conspiracy”) and Episode joined the Conspiracy upon or immediately after its incorporation.

222.  The elements of unlawful means conspiracy to injure comprise:

(1) a combination,

(2) of persons including the defendant,

(3) to do something which is unlawful in itself (which may be tortious, criminal or a breach of contract),

(4) with a common intent to injure (although there is no need for there to be a predominant purpose to injure),

(5) causing loss to the plaintiff.

See: Kuwait Oil Tanker Co & Anor v Al Bader & Anor [2000] EWCA Civ 160; 廈門新景地集團有限公司 v Eton Properties Ltd & Ors, CACV 158/2012 (15 April 2016, unreported)

223.  The above elements are satisfied here:

(1) Matthew and Jenny set up Episode in April 2019. They were both directors and shareholders.

(2) The other shareholders included Karis and Erik. Karis was an employee of Eventmaster and a co-worker of Matthew and Jenny, responsible for coordinating the development and operational aspects of a project. Erik was a programmer employed by Apptask Ltd, a supplier of Eventmaster located in the same office.

(3) Matthew and/or Jenny had engaged in unlawful means including:

(a) acting in breach of fiduciary duty and contractual duties;

(b) inducing breach of employment contract by Eugenie;

(4) Matthew and Jenny had common intent to injure Eventmaster:

(a) Matthew and Jenny set up Episode jointly and they were the only two staff members of Episode and also its directors in charge of the daily operations up till May 2020;

(b) Matthew and Jenny tendered their resignations almost at the same time in mid-July 2019, which is indicative of a coordinated gameplan;

(c) Matthew and Jenny plainly intended to benefit Episode at the expense of injuring Eventmaster;

(d) Matthew, Jenny and Episode dishonestly assisted each other in breach of duties;

(e) As their knowledge are imputed into Episode, Episode is also liable in the same regard;

(f) All in all, they have combined with the common purpose to divert business opportunities and P’s Clients away from Eventmaster and procure Eventmaster’s employees (including Karis and Eugenie) and suppliers (including Erik) to work for Episode, thus injuring Eventmaster.

(5) The above caused loss to Eventmaster, which I would address in the assessment of equitable compensation or damages.

224.  In the premises, Matthew, Jenny and Episode are jointly and severally liable to P for the breaches of duties.

I. Assessment of Equitable Compensation / Damages

I1. Election for Equitable Compensation

225.  After the close of evidence at trial, Mr Wou informed the Court that P elects equitable compensation as remedy for its causes of action in equity, including breach of fiduciary duties and breach of confidence. As regards other causes of action in common law, P seeks the usual remedy of damages.

226.  According to Mr Wou, P’s election is motivated by the following:

(1) Jenny’s evidence that she is no longer Episode’s director after June 2024 and that Episode ceased operations after August 2024;

(2) The whereabouts of Matthew is unknown.

I2. Causation

227.  The common law rules of foreseeability and remoteness do not apply to equitable compensation, though causation is still required: Target Holdings Ltd v Redferns (a firm) and Another [1996] AC 421 at 434F; Libertarian Investments Ltd v Hall (2013) 16 HKCFAR 681 at [97]-[99].

228.  On behalf of Eugenie, Mr Jeffrey Lai contends that the evidence before the Court is insufficient to prove causation, i.e. but for Eugenie’s breaches of duties, P would obtain the deals from the clients or agents in question. There is force in such argument, bearing in mind that a client or agent often obtains quotations from two to three companies. Nevertheless, in relation to P’s Clients, one may say it is more likely than not that P’s Clients would continue to engage Eventmaster but for breaches of duties by Ds.

229.  Be that as it may, whilst P initially claimed the entire amounts in the corresponding quotations, P has revised its position to reduce or limit its claims to the loss of chance.

I3. Loss of Chance

230.  P now submits that the legal basis on which the assessment of equitable compensation or damages should be made is the loss of chance of further orders. That required not merely an assessment of the chance but also an assessment of the profit which the claimant would have made, had the chance materialized: BSM Marketing Ltd v Take Ltd [2009] EWCA Civ 45 at [4]; applied in South China Media Ltd v Kwok Yee Ning [2018] HKDC 194.

231.  The above goes to the assessment of loss of chance. However, it remains necessary to establish causation. In other words, a two-stage test will be engaged to (i) show that the plaintiff has lost the particular chance because of the breach (i.e. factual causation) and (ii) assess the likelihood of the chance and the value thereof (i.e. quantification): Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602, at 1610-1611.

I4. P’s formula

232.  According to P’s formula, the loss equals (i) quotation price multiplied by (ii) the chance of getting the deal and (iii) P’s gross profit margin. P contends that the chance is 40% where it has not provided quotation, and 20% where it has provided quotation.

233.  First, P adopts the quotation price as a starting point. In response, Mr Jeffrey Lai argues that the quotation price does not necessarily reflect the final price, as accepted by Tony in cross-examination. Nevertheless, it seems to me that the Court should not try to speculate on the final price in each case, as the client may or may not ask for a discount or adjustment. In any case, it seems rather onerous (if not disproportionate) to impose on P the burden of adducing substantial evidence in respect of each client or agent in order to derive the likely discount and assess the final price in each and every case.

234.  Mr Lai further stresses that the quotation price does not equate profits and given the complete absence of the accounts of Episode, ascertaining the profits actually made by Episode from the clients in question would be almost impossible. However, this smacks of moving the goal posts because, if Episode’s accounts are relevant, they ought to be disclosed by Ds. Moreover, even if P is to ask for such accounts, they may not be forthcoming given that (i) Matthew’s whereabouts is unknown, (ii) Jenny is no longer a director, (iii) Eugenie had left Episode’s employment and (iv) Episode had ceased operation.

235.  On the whole, I consider P’s adoption of the quotation price to be a practical and reasonable step in P’s formula.

236.  Second, in relation to loss of chance, it is not in dispute that a client would usually request quotations from 2 to 3 vendors in the industry. This is not challenged by Ds – indeed Jenny has confirmed such practice in her testimony. In the premises, P says that for each quote, the “chance of winning” ranged from 1/2 to 1/3. P thus proposes adoption of an average, which is 40%.

237.  Therefore, in cases where P did not provide any quotation, P says it would have lost a chance to make a profit as follows:

Loss = Quotation price x Chance of winning (40%) x Gross Profit Margin

238.  Indeed, the percentage could well be higher than 40% for P’s Clients as they would most likely engage Eventmaster just like before. This is echoed by Tony’s evidence that an existing customer would tend to engage the service of Eventmaster again (“做落去唔差太遠都會幫襯返我哋”). As such, I consider the figure of 40% to be a reasonable (if not conservative) one.

239.  By reason of the above, I am also satisfied that, where P did not provide quotation due to Ds’ breaches of duties, P would have lost such 40% chance of winning because the breaches of duties effectively deprived P of the chance to participate and tender for the deal (i.e. there is factual causation).

240.  On the other hand, for cases where P did provide a quotation, P says that by reason of Ds’ breaches of duties, Episode could compete with it and would also be able to present a more competitive quote in terms of pricing and package, such that P’s “chance of winning” would be reduced to a level below 40%. P submits that in cases where both companies have quoted, a fair figure for “chance of winning” for P should be 20% (i.e. the chance has reduced by half), and P thus suffered a loss of chance of winning of 40% - 20% = 20%.

241.  Therefore, in cases where P did provide a quotation, P says it would have lost a chance to make a profit as follows:

Loss = Quotation price x Chance of winning (20%) x Gross Profit Margin

242.  I consider the figure of 20% a reasonable percentage, which represents reduction of chance of winning by half (from 40% to 20%).

243.  By reason of the above, I am also satisfied that, where both P and Episode provided quotations, P would have suffered such reduction of 20% chance of winning because the breaches of duties enabled Episode to compete and present a more competitive quote in terms of pricing and package (i.e. there is factual causation of the reduction in chance of winning).

244.  Third, Tony has suggested in his witness statement that P’s gross profit margin was 35% in 2020. This comes across as a reasonable figure. Yet, Mr Jeffrey Lai says that there is no substantial documentary proof to justify Tony’s assertion. However, none of Ds has challenged the figure of 35%, whether in their evidence or by way of cross-examination. Whilst P’s formula is new, it is fair to say that by putting forward the same, P is adopting a more reasonable stance to limit its claim to the gross profit margin rather than the entire quotation amount. As such, I am prepared to allow some leeway for P. Moreover, the evidence is contained in Tony’s witness statement and there is little reason why P could not place reliance on the same. Of course, Ds are at liberty to cross-examine Tony on such figure but they chose not to. On the whole, I consider the gross profit margin of 35% a reasonable one.

245.  I will now proceed with the assessment of each client in turn.

I5. Loss of Chance where Eventmaster Has Not Provided Quotations

I5.1 PAG

246.  Episode was awarded the Investment Management Meeting 2019 event in the amount of $150,000.

247.  Adopting P’s formula, as P did not quote for the event, P’s loss is therefore $150,000 x 40% x 35% = $21,000.

I5.2 AXA

248.  Episode was awarded the AXA HK MDRT day 2019 and AXA Asia MDRT Event 2019 events in the amount of $13,500 (after 57% discount, with an original price of $31,400) and $50,000 (after 82.65% discount, with an original price of $288,400) respectively.

249.  I agree with P’s submissions that Episode had provided the huge discounts to persuade the client away from Eventmaster, and the fair prices for assessment of damages should be the original prices.

250.  Adopting P’s formula, as P did not quote for the events, P’s loss is therefore ($31,400 + $288,400) x 40% x 35% = $44,772.

I5.3 HK Land

251.  Episode was awarded the Bespoke Salon Opening event in the amount of $68,000.

252.  Adopting P’s formula, as P did not quote for the event, P’s loss is therefore $68,000 x 40% x 35% = $9,520.

I5.4 Prada

253.  Episode was awarded the Prada Mode London and Prada Mode Paris events in the amount of $80,000 (after 61% discount) and $80,000 (after 53% discount) respectively.

254.  P relies on Jenny’s testimony that the usual prices should be $205,000 and $172,000 for the Prada Mode London and Prada Mode Paris events, and it was only that the client wanted a bargain and so the huge discounts were given.

255.  I agree with P’s submissions that Episode had provided the huge discounts to persuade the client away from Eventmaster, and the fair prices for assessment of damages should be the original prices.

256.  Adopting P’s formula, as P did not quote for the events, P’s loss is therefore ($205,000 + $172,000) x 40% x 35% = $52,780.

I5.5 Pico

257.  Episode provided a quote of $82,000 in the file EPQ2020051_P.pdf and a quote of $117,800 in the file EPQ20200514_PCW.pdf.

258.  Adopting P’s formula, as P did not quote for these events, P’s loss is therefore ($82,000 + $117,800) x 40% x 35% = $27,972.

I5.6 CMHK

259.  Episode quoted a price of $36,200 in the file CMHK_Q.pdf.

260.  Adopting P’s formula, as P did not quote for such event, P’s loss is therefore $36,200 x 40% x 35% = 5,068.

I6. Loss of Chance where Eventmaster Has Provided Quotations

I6.1 HKFWS

261.  Episode provided a quotation for an event in the amount of $230,400.

262.  P fairly accepts that, as Tony did not say whether P provided a quotation for such event, loss could be assessed on the basis that P had provided a quotation.

263.  Adopting P’s formula, P’s loss is therefore $230,400 x 20% x 35% = $16,128.

I6.2 Pico

264.  Apart from the two quotes provided to Pico as addressed in Section I5.5 above, Episode also provided another quote of $18,000 to Pico in file Mid of Dec 20.pdf.

265.  P fairly accepts that, as Tony did not say whether P provided a quotation for such event, loss could be assessed on the basis that P had provided a quotation.

266.  Adopting P’s formula, P’s loss is therefore $18,000 x 20% x 35% = $1,260.

I6.3 AIA HK

267.  P provided quotations to AIA HK for the 2020 events on 2 September 2019 in the total amount of $71,500 + $71,500 + $416,500 + $178,500 + $71,500 + $249,500 + $178,500 = $1,237,500.

268.  As examined above, the evidence suggests that Episode won the contract for all the 2020 events.

269.  Adopting P’s formula, as P did quote for all 2020 events, P’s loss should be assessed at $1,237,500 x 20% x 35% = $86,625.

I6.4 TVB

270.  The price of the Episode’s TVB’s Mun Road Phase 2 contract is $120,000. Episode won the Mun Road Phase 2 contract.

271.  Adopting P’s formula, as P did quote for such event, P’s loss for TVB’s Mun Road Phase 2 should be assessed at $120,000 x 20% x 35% = $8,400.

272.  For the avoidance of doubt, whilst Matthew, Jenny and Episode should be liable for such loss, this is not the case for Eugenie. As I have found above, Eugenie acted in breach of duties in relation to TVB by modifying Episode’s quotation for TVB on 21 April 2020. Nevertheless, such breach took place after (i) TVB notified P on 11 March 2020 that they will not extend contract and (ii) TVB signed contract with Episode on 9 April 2020. Hence, P already suffered its loss prior to Eugenie’s breach of duties. Hence, insofar as Eugenie is concerned, she should be liable for nominal damages of $100 only.

I6.5 Lore

273.  P quoted a price of $120,200 for the Lore Live Jan 2021 event.

274.  Lore did not engage the service of Eventmaster.

275.  Adopting P’s formula, as P did quote for such event, P’s loss should be assessed at $120,200 x 20% x 35% = $8,414.

I7. Nominal Loss

I7.1 DBS and Streaming Services

276.  Whilst I have found that there are breaches of duties in relation to DBS and streaming services, P is unable to point to any quotations provided by P or Episode for assessment of P’s loss.

277.  In the circumstances, P fairly proposes that nominal damages should be awarded for the breach of duties, which I assess at HK$100.

J. Conclusion

278.  For all these reasons, I find that D1 to D3, i.e. Matthew, Jenny and Episode (but not D4, Eugenie), are jointly and severally liable for equitable compensation (or damages) for breaches of duty in relation to the following clients assessed at the following amounts (totalling $223,097):

(1) PAG, assessed at $21,000;

(2) AXA, assessed at $44,772;

(3) HK Land, assessed at $9,520;

(4) Prada, assessed at $52,780;

(5) AIA HK, assessed at $86,625; and

(6) TVB, assessed at $8,400.

279.  Further, I find that D1 to D4, i.e. Matthew, Jenny, Episode and Eugenie, are jointly and severally liable for equitable compensation (or damages) for breaches of duty in relation to the following clients assessed at the following amounts (totalling $59,042):

(1) Pico, assessed at $27,972 and $1,260 ($29,232);

(2) CMHK, assessed at $5,068;

(3) TVB (in respect of Eugenie’s separate breach of duty), with nominal damages assessed at HK$100;

(4) Lore, assessed at $8,414;

(5) HKFWS, assessed at $16,128; and

(6) DBS and streaming services, with nominal damages assessed at $100.

280.  In relation to costs, whilst the parties have made some submissions on costs, I would propose to make a costs order nisi so that the parties are afforded a chance to seek variation if they wish to. Nevertheless, to avoid unnecessary application for variation and further escalation of costs, I would make the following (tentative) observations.

281.  First, as costs should follow the event in general, I consider that P should be entitled to costs against Ds. P has succeeded in its claims in relation to the bulk of the clients or agents. Whilst P has not succeeded in relation to some clients or agents, at the moment and on a tentative basis, it would appear that they were reasonably pursued without substantially lengthening the trial.

282.  Second, I agree that costs should be apportioned as between (i) D1 to D3 on the one hand and (ii) D1 to D4 on the other hand. Judging from the issues and evidence involved and the amount of equitable compensation awarded against D1 to D4, I propose an apportionment of two-third of the costs against D1 to D3 and the remaining one-third of the costs against D1 to D4.

283.  Third, in view of the amount of equitable compensation assessed, it appears to me that costs should be on the District Court scale. Whilst P explains that it was not until the pre-trial review that P realised D1 may not attend trial and it was probably too late to seek to transfer the matter down to District Court by then, it seems to me that P should have realised after the exchange of witness statements (if not upon completion of discovery) that the amount of equitable compensation or profits would most likely fall within the District Court scale.

284.  In the circumstances, I make a costs order nisi for Ds to bear P’s costs of this action on a party to party basis on the District Court scale, with Certificate for one Counsel, to be apportioned as to two-thirds for D1 to D3 (for which they should be jointly and severally liable) and as to one-third for D1 to D4 (for which they should be jointly and severally liable). Such costs order nisi should become absolute unless any party applies for variation of the same within 14 days of this Judgment.

285.  Last but not least, it remains for me to thank Mr Wou and Mr Richie Lai for P and Mr Jeffrey Lai for D4 for the helpful assistance given to the Court.