Lin Weiqing v. Hang Seng Bank, Ltd

DCMP 860/2019

[2019] HKDC 750

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 860 OF 2019

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Before: His Honour Judge Andrew Li in Chambers (Open to public)

Date of Hearing: 28 May 2019

Date of Decision: 28 May 2019

Date of handing down Reasons for Decision: 4 June 2019

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REASONS FOR DECISION

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INTRODUCTION

1.At the hearing on 28 May 2019, I granted the plaintiff a Norwich Pharmacal Order against the defendant Hang Seng Bank, Limited (“HSB”) under an Originating Summons (“OS”) taken out by the plaintiff on 11 March 2019.  I said I would give my reasons for the decision in due course.  Here are the reasons.

BACKGROUND

2.The plaintiff who resided in Los Angeles, United States, was a victim of an apparent telephone scam.

3.In short, the plaintiff had received a number of telephone calls from persons purportedly to be officials from the Daxing Branch of the Beijing Municipal Public Security Bureau, tricking her into remitting a sum of US$50,000 into the account of an individual kept with HSB.

4.Under the OS, the plaintiff is seeking a Norwich Pharmacal Order mainly for the disclosure of the address(es) of the recipient of the proceeds of the fraud perpetuated against the plaintiff, which proceeds have been deposited into the intended defendant’s account with HSB.  The application is supported by an affirmation prepared by the plaintiff’s solicitor in Hong Kong who had reported the matter to the Hong Kong Police (“the Police”). The Police have managed to freeze the proceeds of the fraud in the account.

5.HSB takes a neutral stance to the application and has asked to be excused from attending the hearing.  The only request made by HSB is to ask the plaintiff to indemnify the bank’s costs and expenses incurred as a result of complying with any order which the court may see fit to make.

DISCUSSION

The Law

6.The law in this area is well settled and has been recently summarized by Deputy District Judge Kenneth KY Lam in A v B [2019] HKDC 594.  In essence, in considering whether a Norwich Pharmacal order should be made or not, the court will have to be satisfied that the following conditions are fulfilled:-

(1) There was cogent and compelling evidence that serious wrongful activities had taken place;

(2) The Order would “very likely” reap substantial benefits for the plaintiff; and

(3) The discovery sought would not be unduly wide.

See A Co v B Co [2002] 3 HKLRD 111, at §§13, 38 & 41 per Ma J (as the Chief Justice then was).

Application of the Law

7.Based on the contents of the affirmation and the evidence exhibited thereto, I am satisfied that cogent and compelling evidence had been produced by the plaintiff to show that serious wrongful activities had taken place.  In my judgment, it is clear that the persons involved in the telephone scam had been engaged in a series of concerted fraudulent activities against the plaintiff which resulted in her making the remittance to the holder of the account with HSB.  Hence, in my view, criterion (1) above has been fulfilled.

8.In regard to criterion (2), I am of the opinion that the order sought is necessary for the plaintiff to issue and serve proceedings against the intended defendant, ie the holder of the account at HSB.  As the plaintiff at present does not have the address of the intended defendant and the Police are not under an obligation (nor are they willing) to disclose such personal data to the plaintiff, the only way for the plaintiff to discover such important information will be to seek an order from the court. Seen in such light, there is scant doubt that the disclosure of the information sought will “very likely” reap substantial benefits for the plaintiff as this will enable her to issue and serve proceedings against the intended defendant: see Citibank NA v The Hongkong and Shanghai Banking Corporation Limited [2018] HKCFI 1102 (18 May 2018; Lisa Wong J) at §§7, 9 & 10.  Thus, I am also satisfied that criterion (2) has been fulfilled.

9.In relation to criterion (3) above, HSB has, through no fault of its own, had innocently been caught up with the fraud by permitting the opening and operation of the account by the intended defendant.  There is no question that HSB has or should have in its possession, custody or power of the intended defendant’s address(es).  As said, the only practical if not legal way of obtaining the same will be for the plaintiff to make an application to the court to ask HSB to disclose it.  As the discovery sought only relates to the intended defendant’s address(es), in my opinion, it is not unduly wide.  To the contrary, it is a very specific request.  So long as the bank is to be indemnified for all the costs and expenses incurred or may incur as result of complying the order sought (which the plaintiff’s solicitors through their correspondence with HSB have already agreed to do), I see no reason why the order should not be granted.  Thus, criterion (3) has been met in this case also.

CONCLUSION

10.Based on the above reasons, I granted the order sought by the plaintiff under the OS as amended in court during the hearing.

Mr Thomas W K Wong, instructed by King & Wood Mallesons, for the plaintiff

Attendance of the defendant was excused