Lim Siu Liang Shaune v. Hong Yi Jung

DCCJ4414/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4414 OF 2015

---------------------------------

-------------------------------------

REASONS FOR DECISION

-------------------------------------

1.This is the plaintiff’s application by summons dated 21 March 2016 under section 21 of the Evidence Ordinance (Cap 8) against the Hongkong and Shanghai Banking Corporation Limited (“the Bank”) for all documents and records from 1 May 2015 onwards in relation to the defendant’s account maintained with the Bank.

2.The plaintiff is a judgment creditor and the defendant is a judgment debtor.  Judgment was entered on 3 November 2015 against the defendant that she was to pay the plaintiff the sum of HK$316,000 with interest and costs. 

3.The plaintiff then applied for a Garnishee Order, asking for an order that all debts due and accruing due from the Garnishee (the Bank) to the defendant be attached to answer the judgment recovered against the defendant by the plaintiff.

4.On 18 January 2016, the Garnishee Order nisi was granted.  On 5 February 2016, Tan Wan Pong on behalf of the Garnishee (the Bank) filed an affirmation in which he stated that the net balance of the two accounts maintained by the defendant with the Bank were in debit.

5.However, the defendant informed the plaintiff that her accounts were only suspended by the Bank as directed by the Hong Kong Monetary Authority (“HKMA”) due to suspicious transactions being carried out through her account. The defendant informed the plaintiff that but for the suspension of her account, she would have enough funds to repay the plaintiff. 

6.In support of her explanation, the defendant produced a copy of a letter purportedly issued by the Garnishee (the Bank) to her on August 2015 informing her that her account was suspended under the direction of the HKMA due to suspicious transactions being carried out through the account.

7.The defendant even sent the plaintiff a screenshot purportedly showing the balance of HK$625,802.22 in her account via a Whatsapp message.

8.Based on the above representations which seems to contradict the Bank’s representation, the plaintiff called the Banking Operations Department of the Bank to ascertain and clarify the meaning of “debit” in Tan’s affirmation. However, they were told that the Bank would only act in accordance with court orders.

9.As a result, the plaintiff has taken out the present application.

10.In the afternoon of the day before the hearing of the application, the Bank sent in a letter dated 7 April 2016:-

“According to paragraph 3 of the Affirmation of Tan Wan Pong affirmed on 4 February 2016 “[a]t the time of the service of the Garnishee order to Show Cause on the Garnishee on 21 January 2016, the net balance of the account(s) was in debit.” I confirm that the word “debit” in this context does not carry a different meaning to that of its usual meaning, that is, the Defendant is actually owing money to the Bank. ……

I further wish to inform the Court that the Bank is unable to locate or identify any records to show that the suspension notice dated 14 August 2015 purportedly sent by the Bank to the Defendant produced at Exhibit CCYS-4 to Chan’s Affirmation was in fact issued by the Bank.  Further, the Bank is unable to locate or identify any communications with the [HKMA] regarding the Defendant’s Account.  In any event, I note that the [HKMA] would not fine the Bank’s customers as it regulates authorized institutions under the Banking Ordinance (Cap.155) and not their customers. …”

11.The Bank further asked to be excused from attending the hearing to save costs.

12.It is thus clear at the beginning of the hearing that despite the application for an order sought under section 21 of the Evidence Ordinance not having been heard, the answer that was originally sought by the plaintiff has been given, ie when Tang said in his affirmation that the net balance of the accounts were in debit, it meant that the defendant is owning money to the Bank.

13.However, Mr Chan for the plaintiff still wishes to proceed with the application because he says:-

(i) the Bank has not actually confirmed in its letter whether the defendant’s accounts were suspended;

(ii) the plaintiff would like to obtain the information sought so as to confront the defendant that she is lying;

(iii) the plaintiff would like to know where the money went.

14.First of all, I do not agree that the Bank has not confirmed whether the defendant’s accounts were suspended.  The fact that the Bank has said they do not have any record of the alleged letter notifying the defendant of the suspension of her Account can be taken to mean that the accounts were not suspended.  Further, since the issue of the alleged suspension of the accounts is central to the basis of the plaintiff’s application, I do not believe the Bank would deliberately withhold this information or omit to mention it in the letter if indeed the defendant’s accounts were suspended.

15.Secondly, the fact that the plaintiff wishes to have more ammunition against the defendant when confronting her is not sufficient to invoke section 21 of the Evidence Ordinance.  It is a basic principle that section 21 does not permit a litigant to embark upon a wholesale search of bank accounts in the hope of turning up something to his advantage.  See Assets Investments PT Limited v the United Islamic Investments Foundation and Others (HCA 4392/1993).  The matters which must be demonstrated to a court before it can consider making an order under this section are that the account will contain material germane to an issue which is to be tried between the parties.  Williams v Summerfield [1972] 2 QB 512 

16.It must be remembered that the plaintiff is applying for a Garnishee Order against the Bank.  Whether the defendant lied to him about the suspension of her accounts is irrelevant when the Bank has already informed the plaintiff in no unclear terms that the defendant is owing money to the Bank, ie, there is nothing in the defendant’s accounts with the Bank to be attached to.

17.The plaintiff is also not entitled to know where the money went as his claim is a simple monetary claim and not a tracing or proprietary claim.

18.In the circumstances, the plaintiff’s application must be dismissed with costs of the application to the Garnishee.

Mr Chan Chung Yuen, Selwyn, of Oldham, Li & Nie, for the plaintiff

The defendant was not represented and did not appear

Attendance of the garnishee was excused