CONPAK MANAGEMENT CONSULTANTS LTD v. LUK WAI TING

DCCJ 3016/2021

[2024] HKDC 1545

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3016 OF 2021

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BETWEEN

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JUDGMENT

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I. INTRODUCTION

1.  This is a trial of the plaintiff’s claim against its former employee for breach of contract, breach of confidence, breach of fiduciary duties and fidelity in relation to the use and disclosure certain information of the plaintiff. The plaintiff claims for injunctive relief and damages and/or an account for profit.

II. BACKGROUND NOT IN DISPUTE

2.  At all material times, the plaintiff was and is a practising certified public accountants firm in Hong Kong. It provided and provides accountancy and related services including tax advice. Among its clients were Angenvoort Asia Pacific Limited (“Angenvoort”) and Tom Lee Music Foundation Limited (“Tom Lee”).

3.  Since June 2011, the defendant has owned and controlled a sole proprietorship business under the name “WILTAX & COMPANY” (“WILTAX”).

4.  By an employment contract dated 13 July 2016 (the “Employment Contract”), the plaintiff employed the defendant as a Tax Manager with effect from 29 August 2016. The defendant stayed with the plaintiff a bit less than a year. He then resigned with effect from 31 July 2018.

5.  The Employment Contract provided:-

“12. Other Employment

All employees are restricted from taking up other employment be it a part-time position without written approval by the Company.

13. Security Clause

During the continuance of this employment or after the termination thereof, you shall not disclose your salary details, any confidential information, computer data and documentation of the Company and its clients, including but not limiting to financial statements, technical and process information research data and trade secrets to any person, company or organization without the written authorization of the Company. Discipline action will be taken for staff who does not follow this rule and management of Company reserves the right to take legal action against the violator.

14. Declaration of Interest

You have to declare whether you have directly or indirectly engaged or concerned or interested in any business. Any inaccurate or misleading declaration will constitute a material breach of the Company’s regulation and could be a cause for summary dismissal.

15. Conflict of Interest

No employee, officer, or director or a member of his or her family should receive improper benefits as a result of his or her position with the Company. All employees have a duty to avoid situations where their loyalties may be divided between the Company’s interests and their own interest. Employees should avoid even the appearance of such a conflict of interest.

While it is impossible to outline every situation that may give rise to a conflict of interest or the appearance of impropriety, the following are some examples:

(a) No employee or closely related family member may have a financial interest or stock ownership in, or obligation to, a competitor, customer, or supplier of the Company, where the interest or obligation might cause divided loyalty or even the appearance of divided loyalty.

(b) No employee may perform services as an employee, independent contractor, advisor or consultant for any competitor of the Company. No employee may perform such services for a customer or supplier of the Company without the written approval from the Company.

(c) No employee may serve as a director of any competitor of the Company. No employee may serve as a director of any customer or supplier of the Company without the written approval from the Company.

(d) No employee may accept a position with another company if doing so would impair the employee’s ability to fulfil his or her obligations to the Company.

…

(f) No employee may deprive the Company of a business opportunity, or divert a business opportunity to such employee’s own interest.”

6.  Despite clauses 13 and 14 of the Employment Contract, the defendant never declared his ownership and control of WILTAX to the plaintiff and never sought any approval from the plaintiff for him to take up any position in WILTAX.

7.  During the defendant’s employment with the plaintiff, the plaintiff provided the defendant with the email account wilson.luk@conpak.com (the “Defendant’s Conpak Email Account”) for him to communicate with the plaintiff’s clients. In relation to the use of this email account, the plaintiff provided the defendant with a policy document titled “Conpak Management Consultants Limited and Conpak CPA Limited – Email Usage, Internet and Instant message (IM) Monitoring Policy (the “Policy”). The Policy provided that:-

“Regulations concerning employees sending & receiving Emails, browsing the Internet and using IM.

The Company provides E-mail, Internet and IM facilities to employees primarily for facilitating the business of the company. However, the Company is prepared to permit reasonable and responsible use of E-mail, Internet and IM facilities for non-business or personal purposes on the express understanding during non-office hour that such usage will not… affect the operation and functioning of the company, violate any laws, damage the best interests of the company or the responsibilities of the individual member of staff.

The following E-mail usages are not permitted:-

Transmitting messages for personal commercial purposes;

…

Disseminating sensitive or confidential information and trade secrets of the company.”

8.  On 26 September 2017, using the Defendant’s Conpak Email Account, the defendant sent an email (the “Defendant’s Email of 26 September 2017 re Tom Lee”) to his personal account wilsonluk729@gmail.com. The Email read:-

“Subject: Tom Lee Music Foundation Limited

Dear Alan,

Thanks for the introduction. Please see attached tax engagement letter and appointment letter for director’s signature arrangement.

…”

9.  The attached tax engagement letter provided that WILTAX would be engaged to provide professional services in respect of a letter dated 15 August 2017 issued by the Inland Revenue Department to Tom Lee at a fee of HK$65,000 exclusive of disbursements.

10.  Correspondingly, the attached appointment engagement letter provided that Tom Lee would appoint WILTAX as its representative to handle the said letter dated 15 August 2017 issued by the Inland Revenue Department to Tom Lee.

11.  Separately, during the employment, the defendant forwarded 223 emails from the Defendant’s Conpak Email Account to his own personal email account wilsonluk729@gmail.com. The identities of the clients in those emails are not made known in the present case.

12.  As mentioned above, the defendant resigned from the plaintiff on 31 July 2018. More than one and a half years later, on 8 April 2020, the defendant, by then a director of APEC Taxation Services Limited (“APEC Tax”), used the email account provided by APEC Tax, namely, Wilson.luk@apec-capital.com, to send an email (the “Defendant’s Email of 8 April 2020 to Angenvoort”) to Christian Angenvoort of Angenvoort, saying:-

“Subject: Greetings from Wilson Luk, former Manager of Conpak

Dear Christian,

Good day and long time no see!! I hope you do remember me and this email finds you well since I left from Conpak.

Just a quick note to let you know that I, with a few partners from Big 4, formed the professional firm in the year 2017 to provided listed and private companies’ audit, tax, internal control, company secretarial, Pre-IPO financial advisory services and other professional services. Attached please see my name card, my firm’s client portfolio and its official website for your easy reference.

…

By the way, my firm will now offer up to 40% discount on accountancy, audit and tax services based on your existing service fees in order to say together with my valued clients…

I hope you would highly consider my firm as your company’s professional service provided in the coming future and assured of best services… If you have any interest in our services, please keep in touch via email or my mobile no….

…

Cheers and stay healthy!

Wilson LUK”

13.  Tom Lee remains a client of the plaintiff, and Angenvoort no longer is, although it is not the plaintiff’s case that the defendant diverted Angenvoort to the defendant or his associated business like WILTAX or APEC Tax.

III. PLAINTIFF’S CASE

14.  The plaintiff’ claims in its re-amended statement of claim are not clear. In order to avoid any misinterpretation of the plaintiff’s claim, in respect of its complaint about confidential information, I would quote the following parts:-

“5. In accordance with Clause 13 of the Employment Contract and/or the Policy and/or the Defendant’s duties under common law, the Defendant shall not disclose information contained in emails sent to the Defendant’s Conpak Email Account, including contact information of former and current clients of the Plaintiff (“the Confidential Information”), to any person, company or organization without the written authorization of the Plaintiff.

6. On divers dates during his employment with the Plaintiff, the Defendant, without prior approval or consent of the Plaintiff, forwarded around 223 emails from the Defendant’s Conpak Email Account to the Defendant’s personal email account, wilsonluk729@gmail.com.

7. The Defendant resigned from the Plaintiff with effect from 31 July 2018…

8. On April 8 2020, the Defendant sent an email from his email account with APECT Tax… to Christian Angenvoort of [Angenvoort], a client of the Plaintiff, on 8 April 2020 with the following contents:-

… [email quoted as §12 above]…

9. Further, it was stated in a letter from Messrs Sun Lawyers LLP dated 5 May 2021 that:-

In or about April 2020, solely as a gesture of updating the previous clients as to his current posting, on that one and only one occasions, he sent emails to them (the “Incident”)

10. At all material times, the Defendant has not made any request, and the Plaintiff has not given written authorization to consent to the disclosure of the Confidential Information to any other parties.”

15.  On these pleas, Mr Leon Ho, counsel for the plaintiff, opened the plaintiff’s case by submitting that:-

(1) The forwarding of the 223 emails pleaded in §6 of the re-amended statement claim itself constituted some breach of internal guidelines or policy but did not constitute any cause of action that would give rise to relief from the Court. However, such email forwarding constitutes a factor I should consider in determining whether or not to grant an injunction the plaintiff seeks in its relief, because the forwarded emails may still sit in the Defendant’s personal email account, and the Defendant’s Email of 9 April 2020 to Angenvoort demonstrates a real risk that the defendant would misuse the 223 emails.

(2) The confidential information in respect of the Defendant’s Email of 9 April 2020 to Angenvoort is the contact details of Angenvoort.

(3) Further, by virtue of the admission by the defendant’s previous solicitors as quoted in §9 of the re-amended statement of claim, the defendant had used contact details of the other clients in the 223 emails, although the plaintiff cannot know which clients contact details had been used. Here, I note the oral evidence of Ms Lee Yuk Fan, director of the plaintiff’s group, that she is not aware of any of these clients diverted away from the plaintiff – she even did not check who the clients of those 223 emails were.

16.  In respect of the Defendant’s Email of 26 September 2017 re Tom Lee, similarly, I would like to quote the following parts:-

“Conflicts of Interest

12A. At all material times since 22 June 2011, the Defendant has owned and controlled a sole proprietorship business under the name of “WILTAX & COMPANY” (“WILTAX”). During the Defendant’s fiduciary relationship and employment with the Plaintiff:-

(a) The Defendant has never declared his ownership and control of WILTAX to the Plaintiff’ and

(b) The Defendant has not sought approval (written or otherwise) from the Plaintiff to take up any other employment, including in particular the management and operation of WILTAX.

12B. The Plaintiff avers that WILTAX was at all material times:-

(a) an entity that the Defendant made use of to conduct business activities in competition with the Plaintiff and to divert custom therefrom; and

(b) an arm that the Defendant made use of to further his wrongful and unlawful acts to be pleaded hereinbelow.

12C. On 26 September 2017, the Defendant sent an email from the Defendant’s Conpak Email Account to his personal email account, namely, wilsonluk729@gmail.com, with the following contents ([“Defendant’s Email of 26 September 2017 re Tom Lee”]):-

[quote as §8 above]

12D…

12E…

12F. Tom Lee was and is at all material times a client of the Plaintiff.

12G. In breach of Clause 12, Clause 14 and/or Clause 15 of the Employment Contract, his duties to the Plaintiff and/or trust, the Defendant acts in conflict of interest with the Plaintiff by wrongfully and unlawfully transferring custom from Tom Lee to himself and/or WILTAX (which operated in direct conflict with the interest of the Plaintiff) and receiving such custom on his behalf. The above conduct of the Defendant diverted and took up of the Plaintiff’s custom which was not known to and/or consented and/or authorized by the Plaintiff. As a result, Tom Lee did not approach the Plaintiff to handle the letter dated 15 August 2017 as pleaded at paragraph 12E hereinabove.

12H. The Plaintiff suffered loss and damage as a result of the aforesaid diversion of custom by the Defendant. Pending discovery and interrogatories, the Plaintiff at least suffered a loss of professional fee of HK$65,000.

13. By reason of the matters aforesaid, the Plaintiff has suffered loss and damage and is entitled to and claims an inquiry into damages or an account of profits.”

17.  I note that there is no plea that this Defendant’s Email of 27 September 2017 re Tom Lee was indeed sent to Tom Lee.

18.  In context, the plaintiff’s claim of the defendant’s conflict of interest is confined to:-

(1) The defendant’s operation of WILTAX; and

(2) The defendant’s diversion of the business opportunity in relation to Tom Lee’s tax matter from the plaintiff.

19.  Further, the plaintiff claims an account for profit. As can be seen in §12B(a) of the re-amended statement of claim, the plaintiff only pleads that the defendant made use of WILTAX to conduct business in competition with the plaintiff. There is no claim that all the profits made by WILTAX were profits arising only out of the business of WILTAX competitive with the plaintiff. Nor is there any claim that WILTAX’s only business was the one competitive with the plaintiff. Nor is there any plea that the business giving rise to the profits first came to WILTAX or the defendant in the capacity of a plaintiff’s employee. Nor is there any plea that the plaintiff’s claim for an account of profit would be for all the profits made by WILTAX regardless.

20.  In his opening submissions, Mr Ho claims that the plaintiff is entitled to the profit earned by WILTAX for the period from 1 April 2017 until 31 July 2018.

21.  Further, the plaintiff claims that the defendant diverted a business opportunity of Tom Lee from the plaintiff and breached, among others, clauses 12, 14 and 15 of the Employment Contract and his duties to the plaintiff. The plaintiff claims that as a result, the plaintiff has suffered loss and damage of the sum of at least HK$65,000 as a result of the diversion of the business opportunity.

22.  In this regard, Mr Ho contended during the opening submissions that although Tom Lee remains a client of the plaintiff, the business opportunity diverted was in relation to the services in relation to tax matter mentioned in the Defendant’s Email of 27 September 2017 re Tom Lee. But I noted that it remained the fact that the defendant or WILTAX did not enter into any transaction in relation to this “opportunity”. That said, Mr Ho maintained that the business opportunity was still diverted, although he could not point out to whom it was diverted.

23.  I also note that there is no plea that the business opportunity was a mature one. Nor is there any plea as to how “as a result [of the Defendant’s Email of 27 September 2017 re Tom Lee], Tom Lee did not approach the Plaintiff”: see §12G of the re-amended statement of claim.

24.  The plaintiff prays for the following relief:-

(1) An injunction to restrain the defendant from using or disclosing the Confidential Information, or otherwise acting in further breach of clause 13 of the Employment Contract.

(2) Delivery up of all documents and/or materials in possession, power, custody or control of the defendant the use or disclosure of which would offend against the foregoing injunction.

(3) An inquiry as to damages or an account of profits by reason of the breaches of confidence and/or breach of the Employment Contract.

IV. DEFENDANT’S DEFENCE

25.  In response to §5 of the re-amended statement of claim, the defendant pleads at §5 of the re-amended defence:-

“As to Paragraph 5, the Defendant shall refer to the Employment Contract and the Policy for their true meaning set out therein and repeats Paragraph 3 hereof in relation to the issue of the common law duties.”

26.  The defendant further avers that he did not disclose the confidential information to any third parties, but only to himself, in sending out the Defendant’s Email of 8 April 2020 to Angenvoort.

27.  Further, he relies on the explanation given in a letter prepared by his previous solicitors (Messrs Sun Lawyers LLP) dated 5 May 2021 (the “Sun Lawyers’ Letter of 5 May 2021”):-

“1. According to our client’s instructions, during his employment with your client, our client had been allowed to send emails to clients not only via the computer(s) at the office but also his mobile phone, which was a main way of communication with clients. The mobile phone concerned was out of service shortly after his last day of employment.

2. Subsequently, he discovered that he was still able to access your client’s email system. In or about April 2020, solely as a gesture of updating the previous clients as to his current posting, on that one and only one occasions, he sent emails to them…”

28.  As regards the Defendant’s Email of 26 September 2017 re Tom Lee, the defendant alleges that he did not have knowledge that Tom Lee has been a client of the plaintiff, and in any event, the plaintiff has only suffered a loss of business opportunity.

V. ISSUES

29.  The parties put before me an agreed list of issues, which are:-

(1) Whether the plaintiff approved and consented to the use of the defendant’s own personal email account for work by the defendant during the course of his employment with the plaintiff;

(2) Whether the defendant had disclosed the Confidential Information of the plaintiff to other persons, companies or organisations without the prior approval or consent of the plaintiff;

(3) Whether the defendant acted in conflict of interest with the plaintiff by wrongfully and unlawfully transferring custom from a client of the plaintiff to himself and/or his sole proprietorship, WILTAX & COMPANY, and receiving such custom on his behalf;

(4) If the answers to Issues (2) and (3) are in the affirmative:-

(a) Whether there was any breach by the defendant of his unauthorized disclosure of the Confidential Information and diversion of custom to himself;

(b) Whether the defendant should be restrained from using or disclosing the Confidential Information;

(c) Whether the plaintiff had suffered loss and damage in relation to the defendant’s unauthorised act and breach of the Employment Contract, and if so, what was the amount; and

(d) Whether the plaintiff is entitled to an inquiry into damages or an account of profits in relation to the defendant’s unauthorised act and the breach, and if so, what was the amount.

30.  On top of all these, I think the more fundamental question is what the information in question is and whether the information has the quality of confidence for the remedies the plaintiff seeks.

VI. CONFIDENTIAL INFORMATION?

31.  In respect of confidential information and employers’ contractual right to restrain the employees’ use of confidential information, Mr Brian Lo, counsel for the defendant, draws my attention to the well-established principles as expounded by Riberiro PJ, delivering the unanimous judgment of the Court of Final Appeal in PCCW-HKT Telephone Ltd v Aitken (2009) 12 HKCFAR 114 at §§23-25:-

“23. The injunctive relief obtainable against such former employees is therefore subject to certain limits. An employee, while employed, is subject to an implied duty of fidelity which requires him not to divulge or use, save for his employer’s benefit, any confidential information appertaining to the employer’s business. However, post-termination relief against an employee is confined to restraining misuse or disclosure only of trade secrets and confidential information of an equivalent status. Confidential information of lesser significance is not subject to such protection.

24. The law acknowledges that an employee often brings to a job his own stock of skill, knowledge and experience. Indeed, his possession of such assets will often be the reason for hiring him. And frequently, employees will add to such knowledge and experience in the course of the employment. Where restraint is sought, it is important to distinguish between the employer’s trade secrets and the employee’s own skill and knowledge which he necessarily carries away with him when changing jobs. While an employer may properly claim protection for his trade secrets, he is not entitled to restrain the former employee from deploying his own skill and knowledge for the benefit of himself and his new employer.

25. Thus, where an employer seeks to restrain an employee against misuse or disclosure of his trade secrets, he has the burden of identifying with precision what trade secrets (or confidential information of equivalent status) he seeks to protect. As Hoffmann J (as Lord Hoffmann then was) explained in Lock v Beswick [1989] 1 WLR 1268 at 1273-1274:-

‘The employee may not, after leaving his employment, make use of, in the words of Neil LJ [in Faccenda Chicken Ltd v Fowler [1987] 1 Ch 117 at 136]: ‘secret processes of manufacture such as chemical formulae ... or designs or special methods of construction ... and other information which is of a sufficiently high degree of confidentiality as to amount to a trade secret.’ On the other hand, there will be a good deal of other information which an employee could not without breach of duty disclose while he was employed but which he is free to use as part of his own skill and knowledge after his employment has ceased. It is therefore of the essence of a claim against an employee for misuse of confidential information that the employer should be able to identify with particularity the trade secret or similar confidential information to which he lays claim. The terms of any injunction must also be capable of being framed in sufficient detail to enable the defendant to know exactly what information he is not free to use on behalf of his new employer.’” (emphases added)

32.  I emphasise that not all information labelled as “confidential information” is confidential information protected by the law post-termination of employment. It is only “confidential information of equivalent status” (besides trade secrets) that is.

33.  Mr Ho submits that the defendant does not deny §5 of the re-amended statement of claim, and thus should be taken to admit that the information was confidential. Having read the pleadings, I disagree with Mr Ho, and find that the defendant does not admit (expressly, impliedly or otherwise) the confidentiality of the information, for the following reasons:-

(1) §5 of the re-amended statement of claim simply pleads that in accordance with (a) the clause 13 of the Employment Contract; (b) the Policy; and (c) the defendant’s duties under common law, the defendant should not disclose certain information to other parties. The phrase “Confidential Information” is then used to define the information. However, a definition remains a definition; it cannot ascribe certain nature to the information, and in fact, the re-amended statement of claim never pleads that the nature of the information is confidential. Such plea is required, better with particulars, if a plaintiff would like to claim that certain information is confidential: see Total Lubricants Hong Kong Ltd and others v Chirstophe De La Cropte De Chanterac and others, HCA 1694/2008, 15 December 2009 at §35 per Poon J (as he then was).

(2) §5 of the re-amended defence typically avers that the defendant shall refer to the terms of the Employment Contract and the Policy for the true meanings. In other words, the defence simply is that the parties should look at the terms themselves. Indeed, now, the defendant runs a defence that (a) Clause 13 of the Employment Contract and the Policy do not cover clients’ contacts; and (b) in any event, post-termination restriction would not apply to non-confidential information even according to the contractual terms. I do not think that §5 of the re-amended defence, or absence of a denial there, could be taken as an admission that the information is “confidential information of an equivalent status”.

(3) As regards the common law duties, the defendant refers to §3 of the re-amended defence, which is a non-admission.

34.  Therefore, there is no admission to the confidentiality of the information. I have to analyse whether the information in question is confidential.

35.  The burden lies upon the plaintiff to establish the following elements in order to satisfy me that the information is confidential information of an equivalent status as trade secrets:-

(1) The information must be used in a trade or business.

(2) The information is confidential, that is, not already in the public domain.

(3) The information can be easily isolated from other information which the employee is free to use,

(4) The disclosure of the information would be liable to cause real or significant harm to the owner.

(5) The owner of the information must limit its dissemination or at least not encourage or permit its widespread publication or otherwise impress upon the employee the confidentiality of the information.

See Kuoni Travel (China) Ltd v Kelly Frances Richards and others, HCA 1265/2006, 28 September 2006 at §9 per DHCJ To.

36.  With respect to Angenvoort’s contacts, there is no plea or evidence as to (2) above, namely, the information was confidential in that it was not already in the public. Mr Ho, for the plaintiff, submits that it is clear from the pleadings that the information came in the course of the business of the plaintiff, and so it must have been confidential in that it was not publicly available. I disagree – while the information may have come in the course of the business of the plaintiff, it does not follow that the information was not publicly available.

37.  During the opening submissions, Mr Ho also relied on Willwin Development (Asia) Company Ltd and another v Wei Xing and others, HCA 797/2012, 8 March 2016 to mount a proposition that names and contact of clients are such confidential information. Such reliance is misplaced. In that case, the names and contact of the clients were not just names and contacts as such, but were associated with their product features and specifications. As explained by Mimmie Chan J in §§91 and 97 of that case:-

“91. According to paragraphs 9 and 11 of the Re-amended Statement of Claim, WW claims that in its course of undertaking and carrying out orders for its clients, WW and SWT in turn were provided with clients’ highly confidential information relating to their projects, including clients’ product designs, product plans and specifications, forecasts, research and other information, which are necessary for WW to perform its orders and testing procedures (“Clients’ Confidential Information”). Clients’ Confidential Information includes, in particular, the design and makeup of the product known as “Woodpecker Board”. The plaintiffs claim that WW further owns confidential information consisting of: the identities and contact information of its clients; the identities and contact information of its suppliers for raw materials, parts and components for its Business operations; and information relating to WW’s own technical operations and test procedures which arose in the course of WW’s Business.

…

97. I am prepared to accept on the facts of this case that the names and contact details of WW’s clients and suppliers are confidential information which have the necessary quality of confidence. The contact details of different employees in different departments of the clients of WW/SWT are not available to the public. As the plaintiffs have highlighted, uncommon materials and parts are often specified for production (eg of the Woodpecker Boards), and suppliers of Apple have to attain an approved status. Bearing in mind the nature and practices of the business and industry in question, the nature of Xing’s and Ying’s employment and work, and the detriment to WW/SWT if such information is imparted to its competitor, I am satisfied that the names and contact details of WW’s and SWT’s clients and suppliers are confidential information.” (emphasis added)

38.  The present case, on the pleading and on the evidence, is far from that. In the present case, the plaintiff’s contention simply is that the clients’ contacts are “confidential information of an equivalent status”. In the absence of the essential element that the information was not publicly available, I am not satisfied that the contacts of Angenvoort carries the necessary quality of confidence to entitle the plaintiff to the post-termination protection it seeks.

39.  Insofar as the 223 emails are relevant to the plaintiff’s claim, the above reasons apply even more strongly to the 223 emails.

(1) First, insofar as it is claimed that the contacts of the clients in those email are the confidential information, the identities of the clients in those emails are not made known in the present case. So, the plaintiff fails to satisfy me that the contacts in these emails are confidential information.

(2) Second, insofar as it is claimed that the contents of the emails are confidential, none of the contents have been pleaded or adduced in the evidence. There is no basis at all to find any part of these 223 emails are confidential.

40.  Mr Ho’s reliance on the accountants’ duties of confidentiality adds nothing. The question remains whether the information in question has the requisite quality of confidentiality. I fail to see why there is confidentiality in the information which is publicly available even in the accountants’ context.

41.  As a reality check, I do not see any practical injustice in my conclusion on the non-confidentiality of the information in relation to the contacts. A restraint of trade clause would be found unenforceable as contrary to public policy if the limits imposed in the trade clause are unreasonable, and as a general rule of thumb (not a rule of law), in respect of the time limit, such a clause would usually not be found unenforceable if it were for a restraint of 6 – 12 months absent any special circumstances. Further, where appropriate, the Court may impose a springboard injunction to remove any head start gained by the employee who would, but for the undue advantage gained from the misuse of the information obtained in the previous employment, would have to spend more time to obtain such information. Thus, absent any requisite confidentiality of the contacts of the clients, I do not see why the law should allow the plaintiff to prohibit the defendant from using such information indefinitely, which prohibition would effectively be a restraint of trade clause for no limits. A fortiori, in the present case, there was no restraint of trade clauses.

42.  In the opening submissions, Mr Ho slightly raised a contention that the confidential information contained in the Defendant’s Email of 8 April 2020 to Angenvoort was not limited to the contacts, but also the email chains entailed to the Email, which chains are indisputably emails sent during the defendant’s employment with the plaintiff. However, this is not the plaintiff’s pleaded case, and thus the plaintiff is not permitted to run this case at trial. Mr Ho rightly did not pursue this contention during the closing submissions.

VII. WHETHER THE PLAINTIFF APPROVED AND CONSENTED TO THE USE OF THE DEFENDANT’S OWN PERSONAL EMAIL ACCOUNT FOR WORK BY THE DEFENDANT DURING THE COURSE OF HIS EMPLOYMENT WITH THE PLAINTIFF

43.  In relation to whether there was any approval from the plaintiff for the defendant to forward emails to his own personal account, first, I find that the plaintiff maintained a policy that approval would be required for the defendant to forward emails to his own personal account. I particularly find the evidence contained in §6 of Lee Yuk Fan’s Witness Statement (for the plaintiff) convincing, and so I find, that such a policy was necessary so as to ensure that all the emails would be contained within the plaintiff’s system and replied to within the plaintiff’s system so that for example, if the defendant leaves the employment, his successor would be able to retrieve all the emails readily.

44.  Consistently, I also find the evidence convincing, and so I find, that the defendant would be able to set up his own devices (including computers in his home) to access the Defendant’s Conpak Email Account from home or from his mobile phone. In fact, the defendant himself admitted that he had access to the Defendant’s Conpak Email Account from his mobile phone. I do not see why the plaintiff would differentiate between mobile phone and computers employees’ homes.

45.  Thus, the defendant could have sought approval for him to access the email system from his computers in his home (as he already had in respect of his mobile phone), and there was no need for him to forward the emails to his personal email account as he did allegedly for him to access the emails from home.

46.  On these findings, I find that it would be unusual for the plaintiff to grant approval to any employee (including the defendant) to forward emails from the plaintiff’s email accounts to their own personal email accounts, and that if such unusual approval was given, there would be written record. However, there was no such written record.

47.  In the circumstances, I find that the plaintiff did not allow the defendant to forward emails to his own personal account except with approval, and that the defendant did not obtain any such approval for the forwarding of the 223 emails to his own personal account as he alleges.

VIII. WHETHER THE DEFENDANT HAD DISCLOSED THE CONFIDENTIAL INFORMATION OF THE PLAINTIFF TO OTHER PERSONS, COMPANIES OR ORGANISATIONS WITHOUT THE PRIOR APPROVAL OR CONSENT OF THE PLAINTIFF

48.  As I am not satisfied that the contacts of Angenvoort (as well as the contacts of the clients in the 223 emails) are confidential, this question of disclosure or misuse becomes academic.

49.  That said, for the sake of completeness, I find that the contacts of Angenvoort were indeed disclosed to a third party, namely, APEC Tax. Although it remained the same person, namely, the defendant to send out the Email to Angenvoort, it is clear that the defendant send out the Email on behalf of APEX Tax, because the Email was sent by the email account Wilson.luk@apec-capital.com, and made an introduction that the defendant had set up a new “professional firm” and solicited business for this new firm. Thus, the information was in this sense disclosed to APEC Tax through the defendant, and through the defendant APEX Tax used this information.

50.  As regards the contacts of the other clients in the 223 emails, there is no evidence of any disclosure to any third parties. In fact, although the plaintiff could know from the 223 emails who the clients were, there is no evidence before me that the plaintiff even checked with any of those clients whether the defendant had contacted them, like Angenvoort. Thus, I am not satisfied that there has been any disclosure to third parties.

51.  Where necessary, I also find that the emails forwarded to the defendant’s personal account have not been deleted. The defendant’s evidence in this regard is incoherent and inconsistent. At one time, he said that he deleted the emails, but at other times, he said that the emails had already been downloaded to his mobile phone and thus could be read offline. His evidence as to how he found out that the emails had been downloaded to his mobile phone and could be read offline is incredible. He said that his mobile phone had not been used for a long time, and it was just that one day, when he suddenly would like to retrieve his daughter’ photos, he then opened the mail app and found Angenvoort’s email on the top. He then said that his phone went out of service. Such allegations were made for the first time, and simply did not make sense – notably, he would like to retrieve his daughters’ photos, but for no reasons, he instead opened the mail app and found Angenvoort’s email on the top. On the contrary, Sun Lawyer’s Letter of 5 May 2021 referred to the emails in plural, clearly indicating that the defendant still kept the emails.

52.  Further, even towards the last day of his employment, namely, 31 July 2018, the defendant still forwarded various emails from the Defendant’s Conpak Email Account to his own personal account. This clearly cannot be for the plaintiff’s work as he alleges.

53.  All in all, the defendant is incredible in respect of the purpose of his forwarding of the 223 emails.

IX. WHETHER THE DEFENDANT ACTED IN CONFLICT OF INTEREST WITH THE PLAINTIFF BY WRONGFULLY AND UNLAWFULLY TRANSFERRING CUSTOM FROM A CLIENT OF THE PLAINTIFF TO HIMSELF AND/OR HIS SOLE PROPRIETORSHIP, WILTAX & COMPANY, AND RECEIVING SUCH CUSTOM ON HIS BEHALF

54.  The defendant was an employee of the plaintiff. There is no dispute that he owed a duty of fidelity to the plaintiff.

55.  As regards whether he owed fiduciary duties to the plaintiff, the defendant, in terms of the grade of office, a manager. The total number of managers and directors in the plaintiff were about 10-20 only, out of 80-90 employees employed by the plaintiff in Hong Kong. He was under supervision of Mr Law Hon Man, but he directly dealt, on behalf of the plaintiff, with clients and potential clients. Unique to his role was that the defendant was the only Tax Adviser in the plaintiff. Anything related to tax would be referred to him for his handling. In the circumstances, I find that he was a fiduciary to the plaintiff in the limited respect of the tax parts of the plaintiff’s business.

56.  It is clear that in drafting the Defendant’s Email of 26 September 2017 re Tom Lee (with the attachments to it) in the name of WILTAX using the Defendant’s Conpak Email Account, there was conflict of interest. However, as mentioned above, there is no plea that this Email was indeed sent to Tom Lee. Nor is there any such evidence. Had Tom Lee engaged WILTAX, this might have constituted a basis that the Email was sent, but the fact is that Tom Lee has not engaged WILTAX at all.

57.  I note that in his oral evidence, for the first time, he said that he had told Tom Lee that he would not take up the matter in any event despite the drafting of the Defendant’s Email of 27 September 2017 re Tom Lee, because shortly after the drafting, he found out that it was impossible to achieve what Tom Lee would like him to, namely, to restore the status of charity for the purpose of tax. I do not accept such evidence for the reason that had this been true, which would be so important to his case that in any event, the business opportunity simply which he would not have accepted, this would have been (but has not as a matter of fact) pleaded or at least mentioned in his witness statement.

58.  In the absence of any finding that the Defendant’s Email of 27 September 2017 was sent, and in the absence of any engagement of WILTAX by Tom Lee, I find that the conflict of interest on the part of the defendant stopped at the drafting of the said Email and went no further. There was no diversion of business at all.

59.  Therefore, the answer to this question is in the negative.

60.  Insofar as the plaintiff’s claim that there was conflict of interest in the defendant’s operation of WILTAX, I agree. It is clear from the Defendant’s Email of 27 September 2017 that at least part of WILTAX’s business overlapped, and thus was in competition, with the plaintiff.

61.  Mr Ho goes further. Going beyond the plea at §12B of the re-amended statement of claim, which was carefully crafted to say only that the defendant used WILTAX to compete with the plaintiff and further his wrongful acts (see §19 above), he seems to submit that all the business of WILTAX was in competition with the plaintiff. He also refers to the fact that in answering the plaintiff’s application for specific discovery of WILTAX’s financial statements, the defendant must have accepted that the income and profit of WILTAX are relevant, apparently implying that all the business was in competition with the plaintiff or otherwise, the defendant would not have agreed to discover all the financial statements. Whether evidence is relevant is determined with reference to pleadings, not whether the defendant answered the specific discovery application. The pleadings remain that there is no plea that all the business of WILTAX were in competition with the plaintiff, a matter the plaintiff would have to plead if this is the plaintiff’s case.

X. WHETHER THERE WAS ANY BREACH BY THE DEFENDANT OF HIS UNAUTHORIZED DISCLOSURE OF THE CONFIDENTIAL INFORMATION AND DIVERSION OF CUSTOM TO HIMSELF AND WHETHER THE DEFENDANT SHOULD BE RESTRAINED

62.  For the reasons set out above, there was no breach of confidentiality. Therefore, no injunctive relief should be granted.

63.  For the sake of completeness, had there been any breaches of confidentiality, I do not agree with the defendant that the undertaking offered by the defendant in Sun Lawyers’ Letter of 5 May 2021 would be sufficient to dispense with any court injunction. The undertaking in the said Letter, if accepted, would give rise to contractual obligations only or obligations akin to those. If the defendant had breached the Employment Contract, there would be no basis for this Court to think that yet another set of contractual or similar obligations would be sufficient. I would, in the event that there was breach of confidentiality as alleged by the plaintiff, grant the injunctive relief sought, subject to modification of the terms to make them more precise and clear.

64.  I should also note that during the closing submissions, the defendant unilaterally offered an undertaking basically in terms of the injunctive relief sought by the plaintiff. In the light of my findings of absence of breach above, I do not need to, and thus I do not, accept the undertaking.

XI. WHETHER THE PLAINTIFF HAD SUFFERED LOSS AND DAMAGE, ETC

65.  During the closing submissions, Mr Ho, for the plaintiff, informed me that the plaintiff no long pursues the claim for loss of business opportunity. This is a right decision to make. For claim for loss of business opportunity, the opportunity has to be a “real”, “substantial”, “tangible” or “mature” opportunity, usually with reference to evidence to quantify the percentage and proportions: see Cheung Shun Yee v Rich Resource Development Ltd [2019] HKCFI 2835 at §§27-28 per Wilson Chan J; Kwok Lau Chu v Kwok Chi Yau & another, HCA 3197/2016, 31 August 2017 at §§100-102 per DHCJ William Wong SC (as he then was).

66.  In the present case, there simply is no plea and evidence as to the chance of this opportunity. This head would not be allowed even if the plaintiff still pursued this claim.

XII. WHETHER THE PLAINTIFF IS ENTITLED TO AN INQUIRY INTO DAMAGES OR AN ACCOUNT OF PROFITS

67.  The plaintiff elects an account of profits.

68.  In general, it is only when a fiduciary relationship exists that there could be an account of profits. I accept, however, that in some circumstances, there is a legitimate interest even in a pure contractual relationship to prevent the wrongdoer from keeping the profits arising from the breach of contract: see AG v Blake [2001] 1 AC 268 and McGregor on Damages (22^nd ed) §§16-017 – 16-020. But the present case is not an appropriate occasion to express any definite view, given my findings above that there were no breaches and in any event, in relation to Tom Lee, the defendant or WILTAX did not manage to strike any deal with Tom Lee, and thus the defendant did not gain any profit at all.

69.  Insofar as the plaintiff would like to rely upon the conflict of interest arising from the defendant’s operation of WILTAX to claim profit, I would dismiss such claim for the following reasons:-

(1) Without any profit gains from any business with Tom Lee, the breach of fiduciary duty or fidelity or the breach of contract is simply the conflict of interest in that he operated WILTAX, without more. More precisely, it was a conflict of interest with his operation of WILTAX to the extent that “the Defendant made use of to conduct business activities in competition with the Plaintiff and to divert custom therefrom”: see §12B(a) of the amended defence quoted in §16 above.

(2) As mentioned in §61 above, there is no plead that all the business of WILTAX was in competition with the plaintiff. In respect of profit of WILTAX, there is of course no plea and evidence that in operating WILTAX and gaining profit in the name of WILTAX, all the profits were gained from the part of WILTAX’s business competitive with the plaintiff. Nor is there any plea or evidence that the business giving rise to the profits first came to WILTAX or the defendant in the capacity of a plaintiff’s employee. The only example the plaintiff could give to say that the business of WILTAX was competitive with the plaintiff is Tom Lee.

(3) I am not aware of any authorities that in such circumstances, such profits, gained not in any way related to the fiduciary or contractual position and/or any conflict of interest, have to be accounted for.

(4) Mr Ho stresses at pains that it would be impossible for the plaintiff to know what exactly the defendant did and in particular what information he may have misused, and that the forwarding of the 223 emails is alarming. This stress is besides the point insofar as he would like to drive at a conclusion that therefore, it would not be necessary for the plaintiff to prove that all the profits of WILTAX were made out of business in competition with the plaintiff. The point is that the plaintiff still carries the burden of proof. In assessing the evidence, the Court would of course pay regard to the possibility that the defendant would not tell the whole truth in such cases. However, it remains that there is no presumption (evidential or legal), and the Court simply could not without any basis jump to a finding, that all profits made by a defendant would be profits made out of breaches of duties when the defendant put himself into a position of conflict of interest with the plaintiff.

(5) A fortiori, in the present context, when reading the pleading as quoted in §16 above, the profits gained are reasonably understood to be profits gained out of the engagement with Tom Lee, without any reference to any profits made by WILTAX. In fact, it was only in Mr Ho’s written opening submissions that for the first time, the plaintiff has specified that the profits the plaintiff would like to claim are all the profits of WILTAX for the period of the defendant’s employment with the plaintiff.

XIII. ORDER

70.  In the circumstances, I dismiss the plaintiff’s action.

71.  I make a costs order nisi that the plaintiff do pay the defendant’s costs of this action (including all the costs reserved), to be taxed if not agreed, with certificate for counsel.