TECHTRONIC PRODUCT DEVELOPMENT LTD AND ANOTHER v. FAUTEUX, DENIS GASTON

TECHTRONIC PRODUCT DEVELOPMENT LTD AND ANOTHER v. FAUTEUX, DENIS GASTON

The court held that plaintiffs established cogent and persuasive reasons and special circumstances to release the implied undertaking: defendant had not asserted privilege against self-incrimination at the time of compelled disclosure and thus cannot rely on it now; there is prima facie evidence of wrongdoing (including potential computer misuse, theft and Mainland trade secret infringement) and an arguable civil claim in the Mainland; accordingly the implied undertaking is released to permit use of the disclosed materials for the specified civil and criminal proceedings and plaintiffs are awarded costs.

Citation
[2024] HKCFI 518
Parties
1st Plaintiff: Techtronic Product Development Limited; 2nd Plaintiff: Techtronic cordless gp; Defendant: Fauteux, Denis Gaston
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 February 2024
Case Number
HCA1235/2023
Procedural Posture
Civil Action: Interlocutory Injunctions, Disclosure and Ancillary Criminal Reporting / Interlocutory Hearing — Determination of Leave Summons and Costs (decision on Use of Disclosed Materials)
Outcome
Leave Summons allowed; implied undertaking released to permit specified uses of disclosed materials; plaintiffs awarded costs of interlocutory summonses and Leave Summons; certain injunctive measures continued
Legal Topics
Implied Undertaking and Collateral Use, Disclosure and Delivery Up, Privilege Against Self Incrimination, Injunctions, Forensic Disclosure, Extraterritorial Enforcement, Computer Misuse, Trade Secret Infringement, Costs of Interlocutory Applications
Source Language
EN
Civil Procedure Employment Law Trade Secrets Criminal Law Evidence Intellectual Property Implied Undertaking and Collateral Use Disclosure and Delivery Up +7 more

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Parties

Techtronic Product Development Limited

1st Plaintiff

Techtronic cordless gp

2nd Plaintiff

Fauteux, Denis Gaston

Defendant

Procedural Posture

Civil Action: Interlocutory Injunctions, Disclosure and Ancillary Criminal Reporting / Interlocutory Hearing — Determination of Leave Summons and Costs (decision on Use of Disclosed Materials)

Legal Issues

  1. 1 Whether to release the implied undertaking so plaintiffs may use disclosed materials for civil and criminal proceedings in Hong Kong and Mainland China
  2. 2 Whether the defendant can rely on privilege against self-incrimination when he did not assert it at the time of disclosure
  3. 3 Whether there is prima facie evidence of criminal offences in Hong Kong (computer access with dishonest intent, theft) and of trade secret infringement in the Mainland

Ratio Decidendi

The court held that plaintiffs established cogent and persuasive reasons and special circumstances to release the implied undertaking: defendant had not asserted privilege against self-incrimination at the time of compelled disclosure and thus cannot rely on it now; there is prima facie evidence of wrongdoing (including potential computer misuse, theft and Mainland trade secret infringement) and an arguable civil claim in the Mainland; accordingly the implied undertaking is released to permit use of the disclosed materials for the specified civil and criminal proceedings and plaintiffs are awarded costs.

Court Disposition

Leave Summons allowed; implied undertaking released to permit specified uses of disclosed materials; plaintiffs awarded costs of interlocutory summonses and Leave Summons; certain injunctive measures continued

Orders

  • Leave Summons granted: plaintiffs permitted to use materials and information disclosed under the Aug 2023 Order and Oct 2023 Order for lodging reports and/or criminal complaints and facilitating criminal investigations or proceedings in Hong Kong and/or Mainland China and for civil proceedings against the defendant...
  • Order continuing paragraph 5 of the 11 August 2023 Order until final determination of the proceedings or further order of the court