Lam Wai Han v. Navarro Alanita Andagan and Another

DCCJ 2689/2020

[2020] HKDC 907

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2689 OF 2020

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BETWEEN

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JUDGMENT

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1.The plaintiff first came before this court on 20 April 2020 (DCMP 1071/2020) for a Norwich Pharmacal order against Hang Seng Bank Limited (“the Bank”) seeking disclosure by the Bank of the particulars of the accounts now confirmed to be those of the 1^st and the 2^nd defendants respectively. This court granted the order sought. In June 2020, the plaintiff commenced the present action against the two defendants.

2.As pleaded, the plaintiff started being engaged in Instagram messages exchange with a person claiming to be a Kelvin Lim (“Lim”) in March 2020.  On 27 March 2020, Lim represented that he would send to the plaintiff a gift but the latter would have to pay some charges to the courier company before receiving the parcel.  Subsequently, persons representing to be from the courier company also contacted the plaintiff.  Acting on the representations of these persons, on 4 separate days between late March and early April 2020, the plaintiff transferred from her bank account a sum of HK$19,500 to the account of the 1^st defendant and a total sum of HK$421,531 to the account of the 2^nd defendants respectively with the Bank.

3.The parcel promised never arrived.  Nor was the plaintiff ever required to pay any charges to any courier company.  There was never any dealing between her and either of the two defendants.  She had no reason to benefit either of them in any way whatsoever.  Upon discovery of the deception, the plaintiff reported the matter to the police, and the accounts of the two defendants have since been frozen.

4.As mentioned, the plaintiff came to this court for the disclosure order against the Bank of the particulars of the defendants.  Armed with the information provided by the Bank, she commenced the present action.

5.Affidavit of service shows that the court documents, including the present application, have been served on the defendants at their addresses obtained from the Bank, which are last known to the plaintiff.  There has been no response from either defendant.

6.The plaintiff made the transfers of money out of mistake as a result of the fraud on her.  She claims against the defendants on the causes of constructive trust (for knowing receipt and dishonest assistance) and unjust enrichment.  She also claims on the cause of total failure of consideration for her transfers.  She claims for declaration that the two defendants hold the sums mentioned above in their respective accounts with the Bank on constructive trust for her, and, amongst others, asks for their return, or alternatively damages or equitable compensation to the same extent with interest.

7.Whilst it is not the practice of the court to grant declaratory judgment without a trial, the court should not hold back such relief if the plaintiff demonstrates a genuine need for such relief for the purpose of his recovery of the subject matter that has been misappropriated[1]. Insofar as the plaintiff’s proprietary claim is concerned, an order for the return of the plaintiff’s money, without more, would put the plaintiff in a position of an unsecured creditor of the defendants.  Declaration in respect of the plaintiff’s proprietary right over the sums in question serves to put them out of reach of any other creditors of the defendants[2].  I would therefore grant the declaration sought.

8.In the alternative, the plaintiff claims and, I find as claimed, is entitled to damages against the defendants for the perpetration of the fraud causing her loss of the sums transferred to the two defendants respectively.

9.The plaintiff has pleaded the claim for a vesting order pursuant to section 52 of the Trustee Ordinance, Cap 29 in respect of the sums in the respective accounts of the two defendants.  This part of the claim could not be considered without the Bank being heard.  I note that such claim is not advanced by counsel in her submission.

10.The plaintiff also claims for an injunction restraining the defendants from dealing with the sums in their respective accounts with the Bank or assets up to the amounts of the sums.  In other words, the injunction sought is both proprietary and monetary in nature.  It appears to me that such injunction could be granted, which shall be effective until and except for the purpose of the payment out of the accounts to the plaintiff in execution of this judgment.

11.On the basis of the pleaded case of the plaintiff and materials before this court, I give an order, including that as to costs, in terms of the summons as amended in court.  As to the quantum of costs, I find the statement of costs submitted by the plaintiff to be reasonable, and allow by summary assessment the sum at HK$22,325.

Miss S Ng, instructed by Lo, Wong & Tsui, for the plaintiff

The 1^st and 2^nd defendants were not represented and did not appear