CHUN WO CONSTRUCTION & ENGINEERING CO LTD AND ANOTHER v. LOK WAI KEI AND ANOTHER

HCA 235/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 235 OF 2007

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J U D G M E N T

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Introduction

1.  This is an application by both Plaintiffs to commit the Defendant, Madam Kam Fung Ying, for contempt of court due to her failure to comply with two Orders made by me on 10 January 2008, being the judgment in this action, and another dated 9 April 2008 requiring her to comply with paragraph 5 of the judgment within 14 days.

2.  Paragraph 5 of the judgment is in these terms:

“5.  the 2^nd Defendant do deliver up to the 1^st and 2^nd Plaintiffs all documents and materials which are in her possession, custody or control, whether in hard copy form, or contained in floppy discs or other magnetic or optical media, or any printouts, photocopies, microfilm and record medium or other types, the use or disclosure of which would offered the forgoing injunctions or any of them;”

3.  The terms of the Order of 9 April 2008, for which committal is now sought, mirrors the terms of paragraph 5 of the judgment.  For the sake of completeness, I will set out its terms here:

“IT IS ORDERED that:-

1.  the 2^nd Defendant should do or perform the following act required to be done or performed by her by paragraph 5 of the Judgment dated the 10^th January 2008 (hereinafter referred to as the ‘Judgment’), namely, the 2^nd Defendant do deliver up to the 1^st and 2^nd Plaintiffs all documents and materials which are in her possession, custody or control, whether in hard copy form, or contained in floppy discs or other magnetic or optical media, or any printouts, photocopies, microfilm and record medium or other types, the use or disclosure of which would offend the injunctions or any of them as ordered in the Judgement, within 14 days hereof; and”

4.  The Defendant’s case is that she cannot perform that obligation because she does not have and, never has had, any of the items or materials referred to in the Order.  And so the question that I must decide is whether the Plaintiffs can prove beyond a reasonable doubt that she either has any of the documents or materials mentioned in the Order or, that she once had those items, in which case she should have gone on affirmation to say so and tell the court what has become of them.  In order to understand how all of this has come about it is necessary to give the background to the action.

Background

5.  The 1^st Plaintiff is a building company which is in a substantial way of business.  The 2^nd Plaintiff is one of its employees, employed as a Quantity Surveyor.  The Defendant had been employed by the 1^st Plaintiff for nine years as a secretary in its tendering department.  She ceased her employment on 31 October 2006.  It is not clear from the evidence what the circumstances were which resulted in her leaving her employment.  She has said in her affirmation of 19 April 2008 [B1/251] that at about the time that she left the 1^st Plaintiff, it had implemented a round of redundancies and wage cuts but it is not clear whether she had been made redundant.

6.  On 26 November 2006, that is to say 26 days after her departure, she posted on a discussion website on the world-wide web a list setting out the names and the salaries of 43 of the 1^st Plaintiff’s employees including that of the 2^nd Plaintiff [B1/133-136].  This list, apart from setting out the names of the 43 employees, also contains 66 salary entries being the basic salary and in many cases the total monthly salary of each of the 43 employees in the list.  I will need to return to this aspect presently.

7.  All of this information is confidential.  The Defendant had no right to post it on the world-wide web where it would be available to be read by anyone going to this website which calls itself discuss.com.hk.

8.  In order to repair the potential damage caused by the publication of so many of its employees confidential salary information, the 1^st Plaintiff brought this action, the 2^nd Plaintiff being one of the employees whose salary had been posted on the website.  The general endorsement on the writ [B1/3] asked for an injunction to prevent further such publication and an order for delivery up of all confidential information and for damages.  The statement of claim was based on breach of confidence and of the 2^nd Defendant’s duty of fidelity.  Originally, the 2^nd Defendant’s husband had been made 1^st Defendant but the action against him was subsequently discontinued when it became clear that he had played no part in the publication of the information.

9.  In her home-made defence [B1/47] the Defendant admitted that she had posted this information on the website.  She said that it had appeared on the 1^st Plaintiff’s intranet and that she had come across it in the course of doing her job.  This website had a link relating to the 1^st Plaintiff where many of its employees would post discussion threads about the way that the 1^st Plaintiff had been treating its employees and how the senior staff had behaved badly towards them.

10.  The next stage of the litigation, which I need to refer to, relates to discovery.  The Defendant filed and served her list of documents which was very short indeed.  It listed no documents at all and certainly none relating to the information which the 2^nd Defendant in her defence had admitted to posting on the website.  The Plaintiffs then took out a summons on 20 August 2008 requiring the Defendant to file and serve a further and better list and to file an affirmation verifying her list.  In response to that summons, she filed another list on 31 August 2007 which disclosed correspondence with the Privacy Commissioner, the Plaintiffs having filed a complaint to him about the appearance on the website of its confidential salary details.

11.  Dissatisfied with this list of documents, another summons was taken out asking for an identical order.  When the summons was heard by Master Yu on 12 September 2007, the Defendant, who had been served and who had notice of the hearing date, chose not to attend.  The Master made the Order asked for and awarded costs of $800 against the Defendant, which she paid.  Not having complied with that order, the Plaintiffs now took out a summons to strike out her defence.  There is no question that she was served with that summons and with the notice of the hearing date.  The Registrar heard that summons at which the Defendant again chose not to appear.  The Registrar gave her a further seven days to comply with Master Yu’s order and awarded costs of $1,000 to be paid by her.  She paid the Order for costs but did not comply with the rest of the Order.  An identical summons was taken out on 16 November 2007 for an unless order.  There is no question that she was served with that and with the notice of hearing date of 18 December 2007.  She did not appear on that occasion either when the Master, Master Hui, made an unless order in terms that if the Defendant did not comply with Master Yu’s order within 14 days the Plaintiffs would be at liberty to enter judgment against her.  This order was served on her and she ignored it.  On 10 January 2008, I entered judgment against her and subsequently, on 9 April 2008, ordered her to comply with paragraph 5 of the judgment within 14 days as I have already related at paragraph 3 above.

12.  In purported response to the judgment of 10 January, the Defendant filed and served an affirmation on 26 February to say that she was unable to comply with the production order.  See B1/239-245.  In this affirmation she said that having accidentally come across this information on the 1^st Plaintiff’s intranet, she had memorised the information and posted it on the website.  She had no documents in her possession and never had done.  The Plaintiffs do not accept this.  As the judgment was silent as to time for compliance with its terms, the Plaintiffs took out a summons to fix a time.  This is the Order that I made on 9 April.  In response, she filed another affirmation on 19 April repeating her case that she has never had any documents, nor items of the type referred to in the Order and so she could not comply with the Order other than by saying what she has in her two affirmations.

13.  I ought to make clear, now that a committal is sought, that it is accepted on her behalf that she had been served with all the summonses, hearing dates and orders that I have referred to and that a penal notice had been attached to the judgment and the subsequent 14-day order.  No point arises on this.

Discussion of the Evidence

14.  Mr Jenkin Suen, who appears for the Plaintiffs, says that it is simply incredible that the Defendant does not have and never did have any of the documents and/or items referred to in the Orders that I made in January and April this year.  It is beyond belief that, as she says she did, having seen this list comprising 109 separate entries [names and odd figures] she committed these to memory, carried this information in her head for 26 days and, then typed it onto the website for all to read.  This is made even more incredible when one considers that she got most of the information right.  Mr Suen submits that, if contrary to his primary case, which is that she did not get this from the intranet but must have obtained documents or lists from which she was able to type the material onto the website, I am persuaded that she obtained it as she says she did, she must have copied it down and was then able to put it onto the discuss.com.hk website.  And so, even at a minimum, if this is what she did and then destroyed what she had written down, she was duty bound to put all of this down on affirmation if she was to comply with my orders.

15.  In analysing the evidence, an appropriate starting point is to consider where she got hold of this information.  The nature of the case is such that there is no direct evidence about this.  The Defendant has not filed evidence in response to the Motion for her committal and she has exercised her right not to give evidence before me.  Her two affirmations were before the Notice of Motion for her committal but I think it is right to have regard to them as part of the history and background, giving them the weight that they deserve having regard to the fact that their contents have not been tested by cross-examination.

16.  In these circumstances, the Plaintiffs are left with the task of starting with the account that she has given and having to try and show that it is not to be believed, based on their evidence as to the system for storing such information.  This is not an easy burden to discharge where I need to be satisfied beyond reasonable doubt that she must have had, at the very least, a document, a piece of paper, onto which she copied down this information from the intranet, kept it till 26 November and then (to use the jargon) uploaded it onto the discuss.com.hk website.  If this was the least that she had to disclose, she needed to say so on affirmation in order to comply with my orders.

17.  Although one is left to work in rather murky light, the fact is that the Defendant is claiming for herself a quite extraordinary feat of memory which entailed retaining this information, a great deal of detailed and different information, for 26 days and then reproducing it onto the website.

18.  Mr Bruce Lau, who appears for her, and who has addressed a very persuasive series of submissions, says that this feat of memory, although impressive, is by no means to be cast aside without considering a number of features about what she had in fact done.  Firstly, he says that this was not just a matter of her committing to memory some completely strange and new information.  She had been with this company for nine years.  She knew who these employees were and she would have had, through office gossip, a good idea anyway of the sort of salaries that they were earning.  This would have made the task of recollection a much easier one.  The other point is that although the Plaintiffs say that she got most of the salaries correct, the fact is that when one looks at the list, most of the amounts are in fact incorrect as to current salaries albeit, correct as to the amount in previous years.  And so, it is not fair to say that she got most of it correct, which would have favoured the view that at worst she must have copied the information down from the intranet onto a piece of paper.

19.  I am bound to say that there is force in what Mr Lau has submitted.  In my judgment, it would have been a much easier task to recollect names, facts and figures about one’s work colleagues at a company which had employed her for nine years.

20.  Mr Suen, with his customary thoroughness, has pointed to five separate reasons why her case must not be true.  One of them is that what she now says, that is to say in her two affirmations in February and April, would have carried far more conviction had she bothered to appear at the numerous hearings before Master Yu, Master Hui and twice before the Registrar, when on each occasion she chose to stay away.  I consider that this is a fair point to make but it is also right to say that as long ago as in her defence on 11 June 2007 [B1/47] she did say that she had seen this information on the intranet which she had memorised and what she had posted on the intranet “was only based on my wild guesses”.  Her case therefore does have the merit of being consistent throughout.

Conclusions

21.  This case has troubled me because at first blush, Mr Suen’s submission appeared to be unanswerable especially on the minimum basis that even on her case that this information had come from the intranet, she must have copied all of this down on a piece of paper which she should have disclosed in order to have complied with my orders.

22.  But now that I have had time to reflect on what Mr Lau has submitted, I have been persuaded to arrive at the following conclusions.  Firstly, that it is very possible that the Defendant did get this information from her employer’s intranet.  Its evidence through Mr Chan (the 2^nd Plaintiff), who is hardly the best placed to have given this evidence, it should have come from a senior person in the Human Resources department, is that there were computer data bases where this information was kept.  Although he says this was protected, he has not been able to give, with any detail or precision, how it was protected and what needed to be done to penetrate those protective measures.  This after all requires proof beyond reasonable doubt and the evidence should have been presented with that evidential standard in mind.  Common experience tells us that in offices, and this was after all a building contractor, not a secret or sensitive government department or financial institution, where even in such places confidential information does get out beyond the limited number of restricted staff who are entitled to see it.  It is therefore entirely plausible that the Defendant saw this information on the intranet.

23.  Next comes the feat of memory which is Mr Suen’s best point.  A lot of information, carried in the memory for 26 days, before it was uploaded onto the website.  I am bound to say that it is difficult to conceive of a person doing what the Defendant says she did and getting down 109 different pieces of information.  This calls for some careful consideration because as I have already said there is force in what Mr Lau has said about her recollecting information about colleagues at the place where she had worked for nine years.  There are 43 names that were recorded.  As to this, I am willing to accept that it is perfectly possible for someone in her position sitting down and recording onto the computer the names of 43 colleagues.  The evidence does not disclose how long this took her and I suppose it is perfectly feasible that given time she could well have done that.  The more difficult proposition is applying to each name figures for their salary, being the basic salary and the actual monthly salary.

24.  Part of the case against her is that she got most of these precise and odd amounts correct.  Nevertheless, as Mr Lau points out, most of the amounts are not correct as to the then current salary because they refer to previous years, albeit correct for those years.  What might be said is that if she had actual documents in front of her from which she uploaded the information she would have got all the information correct and not just most of it.  She says that she put down her best recollection of the amounts.  In this regard when one works in an organisation such as an office, office gossip will go a long way in passing around how much different people earn and it is this which Mr Lau relies on in saying that she was not trying to recollect names and salaries of complete strangers which would have been a much more difficult feat of pure memory.  This was more in the order of retrieving from her memory the names of colleagues, perfectly possible in my view, and attaching salary figures to them which is information gained from years of working in that office.  The fact that a lot more of this information was incorrect than the Plaintiffs would have me believe, because many of the correct figures which they relied on were outdated, lends support to her version that she was doing her best working from her recollection.

25.  Looked at as realistically as I can and not being unduly cynical nor naive in accepting what she has said in her two affirmations, I consider that it is probable that she made notes of what she had found on the intranet which she then used as an aide-memoire to upload the information onto the internet.  The Plaintiffs case based on the Defendant getting hold of actual confidential documents, hard copies, and copying these does not get anywhere close to being a probability on the evidence.  The only realistic basis, on the evidence, that I am able to countenance on a case for committal is that of her reading the information from the intranet, which she admits to and making notes from it, which she denies.  It is this factual matrix that I have held to be probable.  This being my view, it must follow that the Plaintiffs have not gone far enough to persuade me beyond a reasonable doubt that this was so.  I can only say that it is probable because I feel unable to exclude as perfectly feasible the prospect that what she has said she did is true for all the reasons that I have attempted to provide.  It has been a question of considering both versions that have been put forward and coming to an assessment of the evidence which, in the event, has only carried me to a probability rather than of being sure beyond a reasonable doubt.  In such circumstances, the Plaintiffs’ case has failed to measure up to what is required and the Motion for Committal must stand dismissed.

26.  I will now hear the parties on costs in a case where the Defendant has brought much of what has occurred on herself by being less than forthcoming before judgment was entered against her.

Discussion on Costs

27.  No order as to costs.