19/09/2019 HCMP2801/2015 THE UNIVERSITY 48. OF HONG KONG v. HONG KONG COMMERCIAL BROADCASTING CO LTD AND ANOTHER The second reason why an obligation of confidence has prima facie arisen is that it appears from the evidence recording had been made surreptitiously. itself made or authorised anyone filed so far that the audio Since 2000 the Council had not to make any audio recording of its meetings, including the 29 September 2015 Meeting. All attendees at the 29 September 2015 Meeting, of the Council, the registrar, the legal advisers including the members and University staff except for one person (Dr Steven Cannon) who was in charge of the security arrangements for the meeting, were requested to hand in their mobile phones which were put in individual sealed envelopes. It is likely, therefore, that the recording that exists was made without the knowledge of anyone at the meeting except the Unknown Person. That person may be a member of the Council or a staff attendee, unless an intruder had managed to plant a recording device there earlier or operated some other eavesdropping device without being present at the 29 September 2015 Meeting, as to which there is no evidence. 49. The authorities suggest that information in the hands of a person who has obtained it by clandestine means is by reason of that fact impressed with an obligation of confidence: Lord Ashburton v Pape [1913] 2 Ch 469, 475. Thus it is stated in Toulson & Phipps, Confidentiality (3" ed): “2-019 A person who obtains confidential information by dishonest or discreditable means (such as electronic eavesdropping) should be, and is, in no better legal position than if the information had been imparted to him voluntarily in confidence. Equity acts on the conscience, and the conduct of a person who obtains confidential information improperly is as reprehensible to the conscience as that of a person who violates the confidence in which he received it.” *3-044 There is today no doubt of the general principle that the equitable doctrine of confidentiality applies where a _ person improperly or surreptitiously obtains confidential information. ...” 3-077 A person who obtains confidential information improperly or surreptitiously behaves in a way which by its nature is contrary to ‘a properly formed and instructed conscience’ ... It is hard to imagine circumstances in which such a person could resist the application of the equitable jurisdiction on grounds of lack of notice of the confidentiality.” https: //legalref.judiciary.hk/Irs/common/ju/ju_frame.jsp? DIS=101619&currpage=T 16/33