JUDGMENT

Rohana Yusuf JCA:

[1] This is an appeal against the decision of the High Court at Johore Bharu. The learned High Court judge allowed the respondent's claim against the appellant for breach of his term of employment. The said breach was in respect of the confidential information clause under his employment agreement.

[2] The appellant, an Indian national was employed as a manager in the Project And Engineering Service Department, in the respondent company on February 2005. He was terminated two years after.

[3] The respondent company was based in Pasir Gudang Johor Bharu. It was involved in the business of recycling palm oil or vegetable oil solid waste discarded by palm and vegetable oil refineries also known as Spent Bleaching Earth (SBE). SBE was used for two main purposes by the respondent. When SBE is collected from the refineries it contains 20 to 23% of crude palm oil. The respondent processed the SBE to extract the oil and produces Industrial Grade Palm Oil (IGPO). IGPO is sold as base oil for animal feed industry and lubricant in steel mills. This was the first purpose of SBE used by the respondent. After going through the process of oil extraction the balance of about 5% oil content would still be found in SBE. This is known as Deoiled Bleaching Earth (DBE). The respondent processed the DBE to be used as fuel. The processing was done in a special custom made Non Electric Furnace (NEF) by the respondent, to generate steam and energy to run its production at the Pasir Gudang factory. This was the second use of SBE by the respondent.

[4] It is a term of his employment that, the appellant is to keep confidential the respondent's trade secret. The relevant clause which reflects the need to keep confidential information is produced below in extenso for ease of reference:

'You will keep all information confidential and not disclose or use either during or subsequent to this employment any secret or confidential technology, information or trade secrets.' 'You will communicate all inventions made by you to the company in the course of employment and assign the same to the company.'

[5] Whilst employed with the respondent, the appellant established a company known as Knowledge Integration Services (India) Pvt Ltd (KIS) of which he was a Senior Consultant for Industrial Solution. The appellant was said to have approached the respondent's client with intention of obtaining business opportunity using the respondent's business information through KIS. The appellant also attempted to sell equipment known as Waste Heat Boiler allegedly using the information and expertise of the respondent.

[6] In his defence the appellant maintained that he executed the appointment letter under duress. He further raised the following defences; he denied disclosing or using information relating to respondent's business; he contended that the restraint clause is only applicable to invention which is patented or copyrighted; he denied setting up KIS or sat as its board member, he denied selling the waste heat boiler and said the boiler is not a result of the respondent's invention because the boiler, according to him, has been in the Indian Market for many years.

[7] The High Court had granted a permanent injunction preventing the appellant from disclosing confidential information on the use of Spent Bleaching Earth ("SBE") biomass boiler or Non Electric Furnace (NEF) and other trade secrets of the respondent. The learned High Court judge ordered for damages to be assessed.

[8] In his ground of appeal, the appellant submitted that the learned High Court judge had erred in her findings of breach of confidential clause because the respondent did not meet the three legal requisites on breach of confidential clause, as established in the case of Coco v. AN Clark (Engineers) Ltd [1969] RPC 41. It was contended by the appellant that the learned High Court judge had erred in finding that there was divulgence of respondent's technology or list of