19/09/2019
HCMP2801/2015 THE UNIVERSITY
OF HONG KONG v. HONG
KONG
COMMERCIAL
38. This is an action to restrain breach of confidence.
BROADCASTING
CO LTD AND ANOTHER
In a claim such as this
it is generally necessary for the plaintiff to show that (i) the information
itself has “the necessary quality of confidence about it”; (11) that information
has been imparted in circumstances importing an obligation of confidence;
and (ili) unless restrained there is likely to be an unauthorised use of that
information to the detriment of the plaintiff: adapting what was
said by
Megarry Jin Coco v A N Clark (Engineers) Ltd [1969] RPC 41, 47.
39.
It seems to me that the papers relating to and an audio recording of the
meetings of the Council, which are not open to the public, are materials of a
nature that prima facie can attract a legal duty of confidentiality.
contain
information
that a reasonable
person
would
normally
They
regard
as
confidential.
40.
A duty of confidence can arise in many ways, and not necessarily as a
result of a contract.
It can arise when confidential information comes to the
knowledge of a person in circumstances where he has notice or is held to
have
agreed
that
the
information
is
confidential:
Guardian Newspapers Ltd (No 2) [1990] 1 AC
Attorney
General
v
109, 281B per Lord Goff;
Gurry on Breach of Confidence (2™ ed), §7.03; SNE Engineering Co Ltd v
Hsin
Chong
Construction
Co
Ltd
[2015]
4
HKLRD
517,
§129.
The
approach of the law is an objective one: whether the circumstances were
such as to import a duty of confidence.
objective
reasonable
recipient,
not
The question is one of notice to an
whether
the
defendant
subjectively
believed or accepted the information was confidential: SVE Engineering Co
Ltd, $131.
41.
It seems to me that, for at least two reasons, an obligation of confidence
prima facie did arise in relation to these materials.
First, there was ample
notice to attendees of the meetings that the documents and proceedings of
the Council’s meetings are confidential.
42. The Code of the Council provides as follows:
“Duties and Responsibilities of Council Members
https: //legalref.judiciary.hk/Irs/common/ju/ju_frame.jsp? DIS=101619&currpage=T
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