Case:

Brief Facts:

• The Binary Group Services Bhd (“Binary Group”), which is the Respondent/Plaintiff in this case, operated a website that provided an online platform for gambling known as Binary.com.
  
  
• Ms Karen Yap Chew Ling (“Karen Yap”), who is the Appellant/Defendant in this case, is an ex-employee of Binary Group.
  
  
• When Karen Yap gave notice of her resignation, she had falsely represented to Binary Group that she was joining a new company to kickstart the marketing department of a startup in the video game and mobile games industry.
  
  
• Relying on this fraudulent misrepresentation, Binary Group had acted to its detriment by allowing Karen Yap continued access to their confidential information.
  
  
• A forensic IT report was produced by Binary Group’s forensic IT expert that showed a beehive of activities on the part of Karen Yap where she had copied wholesale the database of Binary Group’s business partners and clients’ database in the hundreds of thousands of email addresses, commission paid, and trade performed into her own storage.
  
  
• There were also a huge number of emails copied to her own private email account.
  
  
• Hence, Binary Group sued Karen Yap for misappropriating the confidential information of Binary Group by removing or transmitting the confidential information and disclosing the same to the competitor that she now works for.

THE DECISION OF HIGH COURT

• The High Court held that Binary Group had proved its case on the balance of probabilities, and Karen Yap is therefore liable to pay Binary Group the damages suffered.

THE DECISION OF COURT OF APPEAL

• On the issue of liability, the Court of Appeal affirmed the decision of the High Court.
  
  
• While what constitutes confidential information and trade secrets varies from industry to industry, in this case, the Court of Appeal agreed that confidential information includes:-

1. List of affiliates and introducing brokers;
2. Lists of clients and customers;
3. Contact details of and material business-related information on introducing brokers, clients and customers;
4. Data and analysis of competitor spreads;
5. Trade secrets and product innovation;
6. Expansion and marketing plans; and
7. Software, formulas and intellectual property.

• These are confidential information as they are not material in the public domain and they have been collected, collated and curated over the course of time and would clearly be of substantial interest and value to a competitor.
  
  
• A spike in the activities of copying confidential information, especially in the months, days and hours before Karen Yap left the Binary Group and some in the middle of the night, can only speak of a clandestine and carefully concealed conduct designed to escape detection if possible.
  
  
• To determine whether the information is confidential, one only needed to ask the hypothetical question: would the company give me the permission to copy and keep this information for my use for the benefit of a competitor that I would soon be joining?