Lexcom Informationssysteme Gmbh v. Hongkong Joyee Holdings Co., Ltd and Another

HCA 464/2021

[2021] HKCFI 3389

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 464 OF 2021

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BETWEEN

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Before:  Hon Au-Yeung J in Chambers

Date of Hearing:  10 November 2021

Date of Decision:  10 November 2021

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D E C I S I O N

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1.There are 2 applications before the court:

(1)  for the garnishee order nisi to be made absolute against D1 (“garnishee application”); and

(2)  the Summons dated 20 September 2021 for the Mareva injunction to be varied so as to enable payment out of money in the bank account of D1 held with the Hang Seng Bank to the plaintiff in settlement of the judgment debt (“variation application”).

Garnishee application

2.The garnishee order nisi was adjourned on the last location due to non-compliance with Order 49, rule 3(1), as Hang Seng Bank (“the Bank”)  and D1 were served on the same day.

3.Since the adjournment, the garnishee order nisi and the court order dated 18 October 2021 have been re-served on D1.  The court order was served on the Bank on the same day.  I am satisfied as to service. There being no opposition from D1, and the Bank being neutral, the garnishee order nisi is made absolute.

Variation application

4.The Summons asks for variation of the injunction order dated 11 March 2021, as amended on 22 March 2021 and further amended on 26 March 2021, be varied to permit the Bank to:

(a)  Release and pay over to the plaintiff all sums up to the judgment sum of €1,183,210.64 from D1’s account with the Bank; and

(b)  Upon receipt of any new monies into D1’s account maintained with the Bank, release and pay over to the plaintiff all debts due or accruing from the Bank to D1, or so much thereof as may be sufficient to satisfy the unpaid balance of the judgment together with interest thereon.

5.This court notes from the letters dated 21 September and 26 October 2021 from the Bank that the account has been frozen by a regulatory body.  Mr West, solicitor for the plaintiff, informed this court that the regulatory body was the Joint Finance and Intelligence Unit (“JFIU”)  of the Hong Kong Police Force.  The plaintiff had made a report to the police and upon receiving the report, the JFIU would have issued a “letter of no consent” to the Bank to freeze the funds.

6.There is no proof as to which regulatory body has instructed the bank to freeze the bank account of D1.  The judiciary should not be seen to be interfering with the rights and duties of the regulatory body.

7.Accordingly, with regard to paragraph 1(a)  of the Summons, the proper order to make would be:

“Subject to consent of the JFIU and/or any other regulatory body who had instructed the Bank to freeze D1’s bank account, [paragraph 1(a)  of Summons]”

8.The plaintiff no longer pursues paragraph 4(b)  above.  That is a correct position to take as, in my view, the plaintiff is effectively asking for an order to lay its hands on the future funds coming into the bank account of D1 (“future funds order”)  but it is doubtful: (1)  whether the future funds would fall within the meaning of “a debt due or accruing due to the judgment debtor” under Order 49, rule 1; and (2)  whether the future funds would fall within the ambit of the plaintiff’s proprietary claim under the judgment.

9.Accordingly, with regard to the Summons, I only grant an order in terms of paragraph 7 above. 

10.As the plaintiff seeks no order as to costs, I make no order accordingly.

11.I thank Mr West for his assistance.

Mr Mark Andrew West of Reed Smith Richards Bulter, for the Plaintiff

The 1^st Defendant was not represented and did not appear