Wismettac Asian Foods, Inc. v. United Top Properties Ltd and Others
Read the full judgment text of HCA 252/2020 on BabelCite. This Court of First Instance judgment was delivered on 3 April 2020 before K Yeung J.
Civil procedure – Mareva and proprietary injunctions – continuation of ex parte injunctions – fraud tracing – email and impersonation fraud – serious issues to be tried – good arguable case – risk of dissipation – balance of convenience. The Plaintiff, Wismettac Asian Foods, Inc., was deceived by an email and impersonation fraud into remitting US$10,295,000 to two first tier recipient companies, ZL Trade Limited and Jin Hongsheng Trading Co. Through tracing, part of the JHS funds were identified as having been transferred to the four defendants in HCA 252/2020 as second tier recipients, and part of the ZL funds and further JHS funds were identified as having been transferred via other second tier recipients to the six defendants in HCA 384/2020 as third tier recipients. Whether the ex parte proprietary and Mareva injunction granted by Wilson Chan J in HCA 252/2020 should be continued on an inter partes basis. Whether the ex parte proprietary and Mareva injunction and Bankers' Records Order granted by G Lam J in HCA 384/2020 should be continued on an inter partes basis. Held, in HCA 252/2020: the Plaintiff demonstrated not only serious issues to be tried but also a good arguable case, risk of dissipation could clearly be inferred, and the balance of convenience favoured continuation; the injunction was continued against all four defendants until further order or 3 months after the conclusion of the trial, whichever is earlier. Held, in HCA 384/2020: applying the same test, the injunction was continued against D2 to D6 and the order was made per the amended draft; the injunction against D1 was by consent not continued upon its undertaking. Service on all defendants was confirmed satisfactory. Mr Byron Chiu, instructed by Zhong Lun Law Firm, appeared for the Plaintiff in both actions; Mr Simon Lau, of Lau & Ngan Solicitors LLP, appeared for the 1st Defendant in HCA 384/2020; the remaining defendants were not represented and did not appear.
Legal issues: Continuation of ex parte proprietary and Mareva injunction against 2nd tier recipients in HCA 252/2020 · Continuation of ex parte proprietary and Mareva injunction and Bankers' Records Order against 3rd tier recipients in HCA 384/2020
Outcome: In HCA 252/2020, the application for continuation of the proprietary and Mareva injunction against all four defendants was granted, with the injunction to continue until further order or 3 months after the conclusion of the trial, whichever is earlier. In HCA 384/2020, the injunction against D1 was by consent not continued upon its undertaking, while the injunction against D2 to D6 was continued and the order was made per the amended draft.
Cites 1 case
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HCA 252 & 384/2020 [2020] HKCFI 584 HCA 252/2020 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 252 OF 2020 ______________
______________ HCA 384/2020 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 384 OF 2020 ______________
Before: Hon K Yeung J in Chambers Dates of Hearing: 3 April 2020 Date of Decision: 3 April 2020 ______________ DECISION ______________ 1.This is:
2.I have read the affirmation of Yuki Mihata (“Mihata”) dated 16 December 2019. Mihata is a Sales Manager of the Plaintiff, which is a private company in California. According to Mihata, the Plaintiff has been the victim of an email and impersonation fraud. The Plaintiff has been deceived into remitting various sums in the total amount of US$10,295,000 to 2 companies. They are ZL Trade Limited (“ZL”) and Jin Hongsheng Trading Co (“JHS”). Arising from those facts, the Plaintiff has started HCA 2315/2019 against those 2 companies as the 1st tier recipients of those funds. An ex parte proprietary and Mareva injunction, subsequently continued on an inter partes basis, has been obtained against them. 3.I have also read the affidavit of Dorothy Patricia Siron (“Siron”) of 9 March 2020. According to her, and according to information the Plaintiff obtained upon subsequent discovery and tracing exercise, part of the funds the Plaintiff remitted to JHS had been transferred to the 4 defendants in HCA 252/2020. It is the Plaintiff’s case hence that they are some of the 2nd tier recipients. 4.Supported by the said affidavit of Siron, the Plaintiff obtained from Wilson Chan J the ex parte proprietary and Mareva injunction in HCA 252/2020 which the Plaintiff is now seeking to continue. 5.I have read the further affidavit of Siron of 20 March 2020. According to her, and according to further information the Plaintiff obtained upon discovery and tracing, part of the funds the Plaintiff remitted to ZL, and further part of the funds the Plaintiff remitted to JHS which had not been transferred out to the defendants in HCA 252/2020 had been transferred, via some 2nd tier recipients (not the defendants in HCA 252/2020) to the 6 defendants in HCA 384/2020. It is the Plaintiff’s case hence that they are some of the 3rd tier recipients. 6.Supported by the further affidavit of Siron, the Plaintiff obtained on an ex parte basis from G Lam J in HCA 384/2020 the order which the Plaintiff is now seeking to continue. 7.I have read the relevant affirmations of service, namely the affirmations of Ling Emily See‑pui of 23 and 27 March 2020. I am satisfied that all relevant documents have been served upon the defendants in both actions. 8.I am satisfied that the Plaintiff has successfully demonstrated not just serious issues to be tried but also a good arguable case against the defendants. Risk of dissipation can clearly be inferred. Balance of convenience is clearly in favour of the granting and continuation of the injunction. 9.In respect of D1 in HCA 384/2020, upon its undertaking as attached, the injunction against D1 is by consent not continued. 10.In respect of all the Ds in HCA 252/2020, I grant the application as per the summons, save that the injunction is continued until further order or 3 months after the conclusion of the trial herein, whichever is earlier. 11.In respect of HCA 384/2020, I continue the injunction against D2 to D6, and make the order as per the draft order before me as amended.
Mr Byron Chiu, instructed by Zhong Lun Law Firm, for the Plaintiff in HCA 252/2020 and HCA 384/2020 The 1st to 4th Defendants in HCA 252/2020 were not represented and did not appear Mr Simon Lau, of Lau & Ngan Solicitors LLP, for the 1st Defendant in HCA 384/2020 The 2nd to 6th Defendants in HCA 384/2020 were not represented and did not appear | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCA 252/2020