When Elephants Fight, It Is The Grass That Suffers

By Audrey Pring

Ng Kim Fong v Menang Corporation (M) Berhad (Breach of Confidentiality) – Civil Suit No.: W–02(W)–727–04/2019

The Court of Appeal in this case discussed what information is confidential and what can override the duty of confidence, and delivered a judgment in February 2020.

Background & Facts

Ng Kim Fong (the Appellant) brought a case against Menang Corporation (M) Berhad (the Respondent) as she appealed the original decision made in the High Court. She claimed her career was damaged as a result of an internal dispute between two influential individuals in the company, namely Managing Director/Chief Executive Officer (CEO), Dato’ Shun Leong Kwong, and Deputy Managing Director / Deputy CEO, Toh May Fook.

After working for the company for over 27 years, the Appellant claimed that she was forced to tender her retirement letter, occurring as Dato’ Shun called her into his office and questioned her about a memorandum and her “alignment” with Toh, as the Appellant was placed under Toh’s team and took instructions from him. She then filed a complaint with the office of the Director General of Industrial Relations under Section 20 of the Industrial Relations Act 1967, claiming that her dismissal was without just cause or excuse. The Respondent claimed that she voluntarily retired, and after her employment, had wrongfully disclosed various confidential and sensitive information and documents.

The Respondent filed a lawsuit against the Appellant on the concern of misuse of documents to disrupt and interfere with the business of the Respondent. The Court of first instance, found in favour of the Respondent, to which Ng Kim Fong appealed.

Issues

These were the issues that were considered by the Court of Appeal:

In the original judgement of the lawsuit initiated by Menang Corporation (M) Berhad (the Plaintiff) against Ng Kim Fong (the Defendant), did the Defendant resign voluntarily or was she forced?
- Is there sufficient evidence to support the Defendant’s case that she was forced to retire? (Learned Judge answered: No)
- If so, is the Defendant’s counterclaim that the Plaintiff had forced her to retire successful and therefore is she entitled to the reliefs sought? (Learned Judge answered: No)

The Suit – Has the Appellant (Ng Kim Fong) breached her express or implied duties that she obliged to the Respondent? (The Court at first instance held: Yes, she had breached her duties).

- Do the express or implied terms of employment mean that she has a duty to act in her employer’s best interest, with duties of fidelity and good faith, including a duty not to divulge confidential material and misuse information?
  - Is the alleged disclosed material confidential? (Learned Judge decided: Yes)
  - Did the Appellant act on a frolic of her own or under management instruction?
  - Was the Appellant working to undermine or compromise the Respondent’s reputation?

- If so, will the Court impose injunctive orders to stop the Appellant from divulging information to third parties by means of restraining her from accessing the Respondent’s information technology system or the Dropbox account?

Decision

Initially, the High Court found that there was insufficient evidence brought forward by Ng Kim Fong to prove Menang Corporation (M) Berhad had dismissed her without just cause or excuse.
- The Court considered evidences of the following:
  - The Defendant’s colleague who testified that the Defendant told her about the resignation but never mentioned about being forced to retire.
  - The fact that the Defendant had come back to the office the next day without any problems.
  - An email sent by the Defendant to Deputy Chief Director saying she had chosen to go for early retirement.

The Appellate Court found that the finding of facts and the conclusions by the Learned Judge had erred, in which he failed to comprehensively assess all the evidence from by the respective parties, as following:
- Emails between Deputy CEO Toh and the Appellant (Ng Kim Fong), containing instructions to compile relevant information and documents regarding a questionable land transaction.
- Information and documents allegedly disclosed by the Appellant did not fall into the traditional definition of “confidential” as defined in Faccenda Chicken Ltd v Fowler [1987].
  - Information that is trivial or easily accessed by the public cannot be regarded as confidential.
  - Even if deemed “confidential”, disclosure may be permitted when there is an overriding public interest in making those facts available in the public domain – e.g., evidence of criminal conduct or other unlawful conduct, e.g., tax evasion.
    - “There is no confidence as to the disclosure of iniquity” – Initial Services Ltd v Putterill [1968]
- The Appellant took the position that she had not divulged anything confidential, which was accepted by the Court.
- Even if the issue does arise, the irregularities in the land transactions provide an exception to the confidentiality.
  - The Respondent could not even point to anything that was “sensitive” to the company.
- The Appellate Judge found that the Learned Judge failed to critically examine Dato’ Shun’s evidence of the final days of the Appellant’s employment.
  - When examined, the conversation appeared to give the Appellant “Hobson’s choice”, i.e., no choice. The words “what do you want to do now, given the situation” are taken to mean a forced resignation when considered along with the whole conversation.
  - Furthermore, an email sent by the Appellant stated that she was coerced out of employment and was not repudiated by the Respondent.

As the Appellant suffered damages for breach of contract, judgement was made in favour of her in the form of payment of her contractual retirement benefits as provided in the company’s Staff Employment Policy, and not as compensation for loss of employment. The benefits amount to RM276,675.00 and interest payable at 5% per annum from 1st August, 2016 till the date of full payment or realization by the Respondent.

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