CORBIERE LTD AND OTHERS v. KE XU

HCMP 1962/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1962 OF 2014

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D E C I S I O N

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1.  The Court of First Instance has power under s 21M of the High Court Ordinance, to grant interim relief in relation to proceedings which have been or are to be commenced in a place outside Hong Kong and are capable of giving rise to a judgment which may be enforced in Hong Kong. I have well borne in mind that under s 21N of the High Court Ordinance, when the Hong Kong court grants interim relief in relation to proceedings which have been commenced outside Hong Kong, the court must have regard to the fact that its power is ancillary to the foreign proceedings, and is for the purpose only of facilitating the process of the foreign court that has primary jurisdiction over such proceedings. This is important and relevant in the context of the issues raised by both the Plaintiff and the Defendant: as to whether this court should grant orders outside the scope of the Order made by the English court originally on 6 August, and in the context of the Defendant’s claim of privilege against self-incrimination.

2.  Deiulemar Shipping SpA v Transfield ER Futures Ltd [2011] 1 HKLRD 75 is relied upon by the Defendant, to argue that the Hong Kong court should not extend the order made by the English Court in this case, and that any relief outside the ambit of the first English Order made on 6 August should be sought in the English court, and not here.  First, the Court of Appeal made it clear in Deiulemar that it was not laying down a matter of general principle or a matter of procedure.  Obviously, each case depends on the facts and the circumstances surrounding the making of the order of the foreign court, and the order of the Hong Kong court which facilitates the foreign proceedings.

3.  Section 21N(2) of the High Court Ordinance also expressly provides that the Court of First Instance in Hong Kong has the same power to make any incidental order or direction for the purpose of ensuring the effectiveness of an order granted under s 21M, as if the order was granted under s 21L in relation to proceedings commenced in Hong Kong.

4.  The English Order of 6 August was for the Defendant to hand over the items which the Defendant had removed from the Plaintiffs’ premises (“Subject Items”), and to restrain the Defendant from using or copying confidential information of the Plaintiffs.

5.  The Order I made on 7 August, in aid of the English proceedings, was for the Defendant to hand over the Subject Items specified in the English Order.  A further order was made on 9 August, whereby the Defendant was ordered to disclose the locationof the Subject Items, including any laptop computer or electronic device or electronic storage device in the Defendant’s possession, custody or power in Hong Kong.  On 11 August, the further Order made was for the Defendant to depose to the locationof any computer, hard drive or electronic storage device in Defendant’s possession, custody or power.  These orders were made on evidence filed as to how the Defendant had left London, arrived in Hong Kong, and his dealings in London and Hong Kong since 6 August when he left the Plaintiffs’ employment, including evidence of his gaining access to the Plaintiffs’ computer system after his departure from the Plaintiffs’ employment, and evidence of his erasing records of his work on the Plaintiffs’ system.

6.  It is important to note at the outset that the Orders made in Hong Kong are for the Defendant’s delivery of the Subject Items to an Independent Solicitor for safekeeping, for the Independent Solicitor to report to the court whether the materials delivered up “relate to the affairs of the Plaintiffs or appear to be the property of the Plaintiffs or contain copies of items which appear to be the property of the Plaintiffs”.  The Order of 11 August further permits the Independent Solicitor to allow a third party forensic computer or data specialist to examine the electronic devices received from the Defendant, to determine if any data has been deleted from the device and to restore any data that has been deleted, and to report to the Independent Solicitor as to his findings.

7.  On the facts of this case, when it has been clearly shown that the Defendant has (1) taken and removed items which belong to the Plaintiffs, which he has no right to retain; (2) been surreptitious in his dealings with the Plaintiffs’ property; (3) gained unlawful access to the Plaintiffs’ computer system after leaving the Plaintiffs’ employment; subject to the caveat relating to the Defendant’s claim of his right to silence and not to incriminate himself in criminal proceedings, the balance of the risk of doing an injustice is in favour of granting the orders sought by the Plaintiffs.  To the extent that a high degree of assurance is required, I am so assured that the Plaintiffs will establish at trial their claims against the Defendant and their rights to the relief sought.

8.  I cannot see what injustice can result to the Defendant as a result of the return to the Plaintiffs of property and confidential information or copies made thereof which belong to the Plaintiffs, or as a result of the delivery of the electronic devices to the Independent Solicitor to report on whether they contain records, data or information which relate to the business of the Plaintiffs.

9.  I am satisfied that there are good reasons why the application for the Orders are made in Hong Kong.  The Defendant has been in Hong Kong since 7 August, and is now remanded since 14 August.  The evidence shows a real likelihood that items falling within the ambit of the Orders I made in Hong Kong, namely laptop computer, electronic devices, and electronic storage device were in Hong Kong when the Orders were served on the Defendant on 7 August 2014, which have not been delivered up in compliance with the Orders.

10.  I am also satisfied that the Orders sought by the Plaintiffs can facilitate the English proceedings, and ensure the effectiveness of the Order made by the English court, as well as the Orders granted in aid thereof in Hong Kong, and that the Hong Kong court has power to make such orders for proceedings commenced in Hong Kong. 

11.  The only issue is the Defendant’s claim of privilege against self incrimination, since he has now been committed to custody in Hong Kong in respect of theft, criminal damage and offences involving the unlawful use of computer.  Whether he can claim such privilege and the extent of such privilege is a matter of English law, best fit to be resolved by the English court. Since there are proceedings in the English court, I consider that, balancing the risk of doing injustice to either the Plaintiffs or the Defendant, the only order I will make at this stage is for delivery of the items identified in the summons by the Plaintiffs to the Independent Solicitor for safe custody only: pending the orders which the English court will make as to their ultimate disposal: whether they should be handed over to the computer specialist, or should be returned to the Defendant.  In relation to the draft orders which the Plaintiffs seek, I am prepared to grant the orders in terms of paragraphs 1, 2, 3, 6, and 11 to 16 of the draft.

12.  For the avoidance of doubt, the matters to be delivered up to the Independent Solicitor and information to be disclosed to the Independent Solicitor, pursuant to the Orders which I make, will have to be kept and retained by the Independent Solicitor, subject, as I said, to further orders to be made by the English court or by the Hong Kong court.