INFO SALONS TECHNOLOGY SERVICES (HK) LTD v. FENG WENGUO, JAMES AND OTHERS

HCA 654/2025

[2026] HKCFI 4667

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 654 OF 2025

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D E C I S I O N

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1.  This is the Plaintiff’s application for summary judgment for some of the relief it has claimed in its action against the 1^st and 2^nd Defendants.  The 3^rd Defendant is the 2^nd Defendant’s company but it is not involved in the present application.

Brief background

2.  The Plaintiff company provides technology services to the exhibitions and events industry. The 1^st Defendant was its employee from 2006 to 2024, having worked initially for a group with which the Plaintiff was related, and later as general manager of the Plaintiff.  The 2^nd Defendant was the Plaintiff’s employee from 2014 to 2024, and was deputy general manager prior to his departure. 

3.  On 8 May 2024, the 2^nd Defendant gave one month notice of resignation.  On 1 August 2024, the 3^rd Defendant was incorporated, of which the 2^nd Defendant is the sole director and controlling shareholder.  It is the Plaintiff’s case that as the 3^rd Defendant entered into direct competition with it, the 2^nd Defendant was in breach of a 12-month non-solicitation covenant and non-competing covenant in his employment contract.  On 25 April 2025, DHCJ Alan Kwong ordered an interlocutory injunction against the 2^nd Defendant, effective until 7 June 2025.  

4.  As for the 1^st Defendant, he gave one month notice of resignation on 2 August 2024. It is common ground that he stayed on beyond 1 September 2024 to help with handover of his work.  The capacity in which he stayed on and the exact date on which he left are disputed, but the dispute is not relevant to the present application.  The 1^st Defendant handed over his company computer to his successor on 11 or 12 October 2024, but it is common ground that he continued to communicate with the Plaintiff’s staff on company matters by WeChat until 26 October 2024.

5.  As a result of certain incidents in the first quarter of 2025 regarding the 3^rd Defendant’s provision of services to a company which had been the Plaintiff’s customer, the Plaintiff’s solicitors issued a letter before action against the Defendants followed by the issue of a writ on 31 March 2025.

6.  The Statement of Claim (SOC) was filed in June 2025, followed by the 2^nd Defendant and 3^rd Defendant’s Defence and Counterclaim in September 2025, the 1^st Defendant’s Defence in October 2025, and the Reply and Defence to Counterclaim in November 2025.

7.  The causes of action alleged against the 1^st and 2^nd Defendants in the SOC include breach of contractual duties, breach of confidence, breach of fiduciary duties, and unlawful means conspiracy.  These causes of action are based partly on the Plaintiff’s allegations that, before their departure, (1) the 1^st Defendant had forwarded some company emails to himself, then deleted the contents of his company computer and email account, and (2) the 2^nd Defendant had deleted his company emails, all without back-up (see paras 41.5, 43.3, 44.3, 56.3 SOC).

The parties’ respective cases

8.  For the purposes of the summary judgment application, it is the Plaintiff’s case against:

-  the 1^st Defendant that he had wrongfully (1) forwarded company information to himself, and (2) deleted the contents of his company computer and email account without having backed them up or handed them over, and

-  the 2^nd Defendant that he had wrongfully deleted emails from his company email account.

9.  The Plaintiff seeks (in brief) the following relief:

(a)  Declarations that the 1^st and 2^nd Defendants in doing the above acts were in breach of fiduciary and contractual duties;

(b)  Damages or equitable compensation to be assessed, and an account of profits; and

(c)  An account of documents still in their possession and delivery up on verification.

10.  In a nutshell, the 1^st Defendant denies that he had forwarded emails to himself. As for deletion of the contents of his company computer and email account, he accepts he did so, but that was not wrongful because:

(i)  in the course of his work, apart from deleting redundant or superseded emails, he also needed to comply with clients’ requests for deletion of emails (some containing confidential materials);

(ii)  prior to his departure, he had backed-up his work files by uploading them onto the company File Server either by himself or through other staff members, and he had only deleted the remaining data as a precaution to ensure there would not be any leaks of confidential, proprietary or client-related information.

11.  As for the 2^nd Defendant, he denies that he had deleted emails from his company email account.

Legal principles

12.  The principles guiding the court in an application for summary judgment are not disputed.  The starting point is that a plaintiff must demonstrate that the defendant has no defence.  A defendant only needs to show that there is a triable issue or question, or that for some other reason there ought to be a trial.  At an application for summary judgment, the court will not embark on a mini-trial on paper.  And if the application relates to only some of the claims in an action, the court would consider whether it is a compliant use of court resources since a trial would still be needed.

Discussion

Re: the 1^st Defendant

13.  The Plaintiff’s first allegation was that the 1^st Defendant had forwarded emails in his company email account to the same account.  This was alleged in the SOC and the affirmation of Wong Chau Wai, the Plaintiff’s director, who said that “it was discovered” that the 1^st Defendant had done so between June 2024 and October 2024, and that “it was believed” that he had done so in order to download copies before deletion (SOC para 25, and Wong’s 6^th affirmation paras 27(d), 45(a)).

14.  However, as Mr Ernest Ng (who appeared with Mr Calvin Ng) for the Plaintiff fairly conceded, there is no evidence supporting this allegation in the “technical investigation” materials exhibited by the Plaintiff.  Nor is there any evidence to support the assertion in the Plaintiff’s Skeleton Submissions that the 1^st Defendant had forwarded information to his “personal” mailbox (para 15(b)).  

15.  Notably, the Plaintiff’s allegation was that the 1^st Defendant had forwarded emails from his company email account to the same company email account in order to download them.  The 1^st Defendant challenged this in his affirmation in opposition filed on 26 March 2026 (2^nd affirmation para. 36) saying that it is simply not necessary to forward emails to the same email account in order to download them, which seems to accord with common sense. In her reply affirmation filed on 21 May 2026, Ms Wong did not provide any evidence in answer to the point (8^th affirmation, para 30).

16.  The Plaintiff’s second allegation was that the 1^st Defendant had wrongfully deleted the contents of his company computer and email account without having backed them up first.  The Plaintiff relies on, among other things, provisions in the Staff Handbook.  Both defendants have denied that the Handbook was applicable, but I am prepared to assume for present purposes that it was, as their employment contracts stated that the employee is expected to have read and understood the company staff handbook within a week of joining the company, drawing attention to the executive management any areas not understood.  The inference is that the Staff Handbook applied by incorporation. 

17.  Clause 7.2 of the Staff Handbook revised in January 2023 provided that back-ups of all data files and software “must be taken at frequent, regular intervals and stored in a secure location”.  Clause 3.3 also provided that departing employees “need to hand over for the department, other related departments and the personnel department the work and property:  1) Company documents (electronic files included)”.

18.  The 1^st Defendant says that irrespective of the Staff Handbook, he had in fact backed-up his work files during the course of his employment, and that prior to departure, he had handed over his work files to various staff members and liaised with a WeChat group called “Hong Kong Project Data Organization Group” (English translation) of which Ms Wong was one of 8 members.  He said he had deleted his company computer and emails only after such handover. 

19.1.  It is common ground that the Plaintiff maintained various systems, such as the Ilog System, Infoweb System, Database Management System, Information Management System, T+ System, and the File Server. 

19.2.  The 1^st Defendant says that the Plaintiff’s business records and information are in these systems (for instance, the Ilog system is used for clients’ information and requirements, and the Infoweb and Database Management System for project information), and that he had backed-up his work files in the File Server.

19.3.  The Plaintiff says that back-ups of business records would not have been uploaded onto systems other than the File Server, and that the 1^st Defendant must have failed to perform back-ups because he had only uploaded 48. 6 MB onto the File Server in 20 years, which Ms Wong says is “unreasonably low” compared with herself or other departing employees.  The Plaintiff says this is proof that the 1^st Defendant must have failed to back-up all his work files (Wong 8^th affirmation para 25(d)).  

20.  I am satisfied for the following reasons that the 1^st Defendant has raised a triable issue as to whether he had backed up his work files prior to deletion.

21.  First, there was no evidence from the Plaintiff of any standard operating procedure (SOP) for performing back-ups, such as compliance deadlines, and instructions to store which files in which systems, and no evidence as to if and how such back-ups are logged and stored in the systems.  There is no evidence that employees were instructed to preserve permanently all emails and files.  Without such evidence, the Plaintiff has not shown when, what or where the 1^st Defendant had failed to back-up. Nor was there evidence of any SOP for handover. 

22.  Secondly, it is of little value in the present application to compare the 1^st Defendant’s volume of uploaded materials with that of Ms Wong herself or other departing employees who did not occupy the same position and did not perform the same work as him.

23.1.  Thirdly, the 1^st Defendant stayed behind after the expiry of his notice of resignation for nearly 2 months. The Plaintiff says that he was engaged as a consultant until 30 September 2024, but that the 1^st Defendant accessed his account 63 times after that date.  The 1^st Defendant says he stayed on until the end of October 2024 to help in the hand over.  The court cannot determine this dispute at this stage.  However, what is pertinent is that there were frequent contemporaneous messages (text and voice) between the 1^st Defendant and the WeChat group which included his subordinates and other staff and Ms Wong, until 26 October 2024.  In none of the text messages exhibited did anyone from the Plaintiff express surprise that the 1^st Defendant remained in such communication with it, or queried if or how he accessed his account after 30 September 2024.  

23.2.  Further, the exhibited text messages showed that the 1^st Defendant provided files for various projects to other staff members (e.g. Raymond Lam, Jo Chan and Penny Shu) and asked them to upload them onto the File Server.  The 1^st Defendant says that this explains why some files would not be shown in the File Server as having been uploaded by himself. 

23.3.  Further it is notable that there was no challenge or complaint or query from anyone in the Plaintiff that any files had not been handed over or that any parts were missing.  This was despite a message from the 1^st Defendant to Raymond Lam on 15 October 2024 to check first before uploading. 

23.4.  It is also notable in this regard that the 1^st Defendant had returned his company computer on 11 or 12 October 2024, and the Plaintiff alleged that his successor had found on 14 October 2024 that the computer and emails had been “wiped clean”.  The 1^st Defendant’s successor reported this to Ms Wong (SOC para 37), yet the 1^st Defendant was not asked about this, and the WeChat group carried on for nearly 2 weeks thereafter.

24.1.  Fourthly, as for deleted files, the 1^st Defendant explained that he had deleted files which were inconsequential, or which had been copied to others in the company, or which had previously been stored.  A number of examples were quoted in his 2nd affirmation (para.44). 

24.2.  Moreover, the 1^st Defendant explained that during the course of his employment, some clients had requested emails to be deleted, as sometimes confidential information may have been contained in them.  This is supported by exhibited materials from some clients, including Reed and Informa.  The Plaintiff accepts that some clients did make such requests.  The Plaintiff and the 1^st Defendant disagree on the number of such clients and whether they were one-off or repeat clients, but that is not a matter to be decided on a summary judgment application.  Rather, the point is that the 1^st Defendant has shown that some clients did request the deletion of emails he had received, and it cannot be said at this stage that the mere fact of deletion amounts to an admission by him that it was wrongful.

25.  Fifthly, the 1^st Defendant has also pointed to some aspects (for instance, multiple deletions of the same email, or emails apparently forwarded after deletion) which undermine the Plaintiff’s exhibited activity logs.  The Plaintiff has provided some answers to these points, but these aspects show fallacies in the exercise which affects its reliability in a summary judgment application.  

26.  For all these reasons, I am satisfied that the 1^st Defendant has raised a triable issue or question, and that unconditional leave to defend should be given.  I shall discuss later in this Decision the alternative submission of Mr Jeff Yau counsel for the 1^st Defendant that the application should be dismissed.

Re: the 2^nd Defendant

27.  As for the 2^nd Defendant, for the purpose of this application, the Plaintiff alleges only that he had deleted his company emails, which the 2^nd Defendant has denied.  As Mr Ernest Ng fairly conceded, there is no primary evidence to support this allegation.  There is no schedule of deleted emails along the lines of Schedule 1.  The exhibit “WCW-25” at p.710 of the Bundle is only an Electronic Data Confirmation Certificate and does not show any records of emails deleted by the 2^nd Defendant, cf Ms Wong’s 6th affirmation para.36.

28.  The Plaintiff has sought to justify this absence of evidence by saying that that is because the cloud service activity log covers only a rolling period of 180 days.  However, according to the Plaintiff’s own case, suspicion of the 2^nd Defendant arose on 27 November 2024 (Wong 7^th affirmation, para 11), less than 180 days before the 2^nd Defendant’s departure on 7 June 2024, so it would still have been able to access his email account to see if he had deleted anything and what he had deleted.

29.1.  Notwithstanding that, the Plaintiff has asked the court to make an inference against the 2^nd Defendant arising from the following. 

29.2.  In the interlocutory injunction proceedings against the 2^nd Defendant, the Plaintiff says that the 3^rd Defendant had “poached” the Plaintiff’s longstanding customer Informa, whose representative is Celine Lau.  In his 2^nd affirmation filed on 9 February 2026, the 2^nd Defendant said “… Celine Lau was never one of the people from Informa Markets with whom I had to deal with in my work at the Plaintiff” (para 22) and “… my work did not involve Celine Lau” (para.24).  However, the Plaintiff has in Ms Wong’s 7^th reply affirmation filed on 29 April 2026 produced emails passing between the 2^nd Defendant and Celine Lau and others in 2018-2019.  Having said that, this was 6-7 years before the 2^nd Defendant’s affirmation in which he had also said that in any event “… even if there were such Celine Lau emails at all, they would not be just between me and Celine Lau” (para 25).  This was borne out by the 2018-2019 emails.  

30.  In my view, even if the 2^nd Defendant may be said to have been “caught out” regarding his denial of any dealings with Celine Lau in the course of his work, that is hardly primary evidence that he had wrongfully deleted emails, of which as Mr Ng conceded there was none.

31.  In the circumstances, I am satisfied that there is a triable issue or question whether the 2^nd Defendant had deleted emails in his account before his departure, and that unconditional leave to defend should be given to him as well.

Dismissal of application?

32.  In giving unconditional leave, I am aware that Mr Yau for the 1^st Defendant has asked in the alternative for the application to be dismissed.  He submitted that the Plaintiff has been “cherry-picking” in seeking summary judgment of the deletion claim, and that the summary judgment application should be dismissed as a trial would not be obviated (Skillsoft Asia Pacific Pty Ltd v Ambow Education Holding Ltd (No. 2) [2016] 1 HKLRD 1052).

33.  It is indeed clear from the pleadings that deletion is pleaded as an overt act of the conspiracy cause of action.  However, for the conspiracy claim, facts other than deletion would have to be proved (for instance, intention and knowledge), whereas wrongful deletion can be a separate cause of action in the contractual and breach of fiduciary duty claims.  The declaratory relief sought in the summary judgment application does not refer to conspiracy.  If wrongful deletion were proved, it would not have mattered why it was done (in other words, whether or not it was done in furtherance of the alleged conspiracy).  Therefore, in the exercise of my discretion, I do not consider that the application should be dismissed.

Order

34. 1.  The 1^st and 2^nd Defendants do have unconditional leave to defend.  There will be an order nisi that the costs of the application be costs in the cause.  Insofar as further directions (such as for discovery) are required, the parties should proceed before a master. 

34. 2.  It only remains for me to thank all counsel for their assistance.