Xiao Yueqiong v. The Hongkong and Shanghai Banking Corporation Ltd and Another

DCMP 1847/2023

[2023] HKDC 1535

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1847 OF 2023

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BETWEEN

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DECISION

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Introduction

1.This is the hearing of an application by Originating Summons dated 25 April 2023 (“the Originating Summons”) by the Plaintiff (“P”) against the 1^st Defendant (“D1”) and the 2^nd Defendant (“D2”) for a Norwich Pharmacal order.

2.The background has been set out in the P’s Affirmation in support of the Originating Summons.  In short, P claims that she, at the time 67 years of age, is a victim of a telephone fraud. 

3.P claims that on or around 9 July 2021 she received a phone call from a fraudster claiming to be a staff of China Unicom and then the call was redirected to a second fraudster who introduced himself as Lu Jianqiang claiming to be an officer of the Public Security Bureau of Shanghai, China (“PSB”).

4.P was told her Hong Kong Identity Card and bank account were stolen or used without authorization and certain officers of PSB would contact her to assist in the investigation of the identity theft case. 

5.On 10 July 2021, she was told to buy a new phone and SIM card which she did. 

6.On 12 July 2021, a lady who claimed was assisting the officers of PSB met P at a park to show her how to use WhatsApp and operate her new phone.

7.On 13 July 2021, she was requested by the PSB officers to apply for a password for her ATM card for her bank account (no 604-072520-833) maintained with D1 (“P’s Bank Account”) which she did. 

8.On 14 July 2021, she was also asked by the officers to disclose how much was in her P’s Bank Account which again she did.

9.Only on 16 July 2021 did it occur to P that she might have fallen victim to telephone fraud and when she checked the balance of P’s Bank Account did she discovered 7 transactions totaling HK$1,370,000.00 had been transferred out of P’s Bank Account to Cheung Man Chun.  P claims that she does not know who is Cheung Man Chun and never authorized those transactions.

10.On 20 July 2021, P reported the matter to the Police.

11.Subsequently through correspondence between P’s solicitors and the Police, it was revealed that in relation to P’s reported telephone fraud that an account (no 388756002268273) maintained with D2 belonging to Chu Lai Kan has been frozen and details were provided to P to facilitate her bringing of civil proceedings.

Jurisdiction and Applicable Principles

12.Notwithstanding the Originating Summons does not include in the left-hand margin the jurisdictional basis for the present application, I am satisfied that that I have jurisdiction to grant a Norwich Pharmacal order under s 21 of the Evidence Ordinance, Cap 8 which provides:-

“that on the application of any party to any proceedings, the court or a judge may order that such party be at liberty to inspect and take copies of any entries in a banker’s record for any of the purposes of such proceedings”.

13.D1 and D2 have been served the Originating Summons and notice given of today’s hearing.  Both D1 and D2 have indicated in correspondence with P’s solicitors that they remain neutral in P’s application and have asked to be excused to attend today’s hearing.

14.The principles relating to applications for Norwich Pharmacal relief are well-settled.  See the 3 main requirements summarized by the Honourable Coleman J in A1 and Another v R1 and Others [2021] HKCFI 650 at §56:-

(1)  There must be cogent and compelling evidence to demonstrate that serious tortious or wrongful activities have taken place (where allegations of fraud or something similar requires the degree of proof to be correspondingly high);

(2)  It must be clearly demonstrated that the order will or will very likely reap substantial and worthwhile benefits for the plaintiff, and where a tracing claim is made that the discovery sought will either allow the plaintiff to preserve what may well be his assets or realistically lead to the discovery of such assets; and

(3)  The discovery sought must not be unduly wide, so an order must be specific and also restricted to those documents or those classes of documents that are necessary to enable the plaintiff to preserve or discover assets.

Analysis

15.First, based on P’s Affirmation, the evidentiary threshold to demonstrate that serious tortious or wrongful activities has taken place has been satisfied.  P has produced and I have studied the relevant bank statements of P’s Bank Account, the Police report and correspondence with the Police.  D1 and D2 are not the wrongdoers but have got mixed up in the wrong-doing of the fraudster(s).

16.Second, P seeks to ascertain: (1) the whereabouts of the sums transferred out of P’s Bank Account; (2) the remaining balances in the accounts which received those sums; and (3) the identity and necessary information of the recipient(s) of those sums.  I am satisfied that the Norwich Pharmacal Order will very likely reap substantial and worthwhile benefit for P, as it will enable her to trace the whereabouts of the sums, preserve the same and take necessary action to recover them against the wrong-doer(s). 

17.Third, I am satisfied that the discovery sought is specific and not unduly wide.  Save for the comments on how disclosure will be made, the time to comply with the order and costs, no other objections were taken and I therefore will take it Ds will not be in any difficulty to comply with any order on such terms made by this court.

18.I will make an order in terms of the draft Order submitted to me save as amended by me.

Mr Warren Suen, instructed by Henry Chiu & Partners, for the plaintiff

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

The 2^nd defendant was excused.