Sim Chang Min v. Cmb Wing Lung Bank Ltd and Others

DCMP 1848/2023

[2023] HKDC 1536

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1848 OF 2023

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BETWEEN

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DECISION

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Introduction and Background

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”), the 2^nd Defendant (“D2”) and the 3^rd Defendant (“D3”) for what is commonly known as a Norwich Pharmacal order.

2.The background has been set out in P’s Affirmation in support of the Originating Summons.  In short, P, who was 88 years of age at the time, claims that he is a victim of a telephone fraud. 

3.P claimed that on or around 18 May 2020 around 8 pm, he received a phone call from a male fraudster claiming to be an officer of the Public Security Bureau of China (“PSB”) and that P was a wanted person in China but this could be resolved by the payment of a sum of money.

4.Between 18 to 20 May 2020, P was then contacted by the fraudster through the voice calling function of WhatsApp.  As he believed what the fraudster told him, he was fraudulently induced to disclose the login details of his bank account (no 067-235499-888) maintained with D3 (“P’s Bank Account”), including his account name, password and PINs displayed on the security device provided by D3 during those calls.

5.On 20 May 2020 at around 10 pm, when P logged into the e-banking of his account maintained with D3 he discovered that 6 sums of monies from P’s Bank Account had been transferred to 2 different bank accounts maintained with D1 and D2 respectively belonging to Lee Kin Man (“Lee”) and Wang Chien Hung (“Wang”).  The total of the 6 sums transferred from P’s Bank Account was HK$1,585,915.00.

6.P claims that he does not know Lee or Wang and never authorized those transactions.

7.On 21 May 2020, P reported the matter to the Police.

8.P has commenced proceedings against Lee by writ action (DCCJ 3664/2020) and default judgment was entered against Lee for the sum of HK$585,905.00 that was paid to Lee’s account maintained with D1.  However, despite obtaining a default judgment against Lee and garnishee order to show against D1, there was no money left in Lee’s bank account maintained with D1.

9.Based on the information obtained from the Police on 10 May 2021 that some of P’s monies were in the account of Lin Zhenming (“Lin”) (account no 062890793833) maintained with D3, which have been frozen, P says that he intends to commence further action to recover his monies from including and not limited to Wang and Lin.

Jurisdiction and applicable principles

10.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 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”.

11.D1, D2 and D3 have all been served the Originating Summons and notice given of today’s hearing.  They have all indicated in correspondence with P’s solicitors that they remain neutral in P’s application and did not intend to attend today’s hearing.

12.The principles relating to applications for Norwich Pharmacal relief are well-settled.  See the 3 main requirements summarized by 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

13.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 perused the relevant bank statements of P’s Bank Account, the Police report and correspondence with the Police and court documents in relation to DCCJ 3664/2020.  D1, D2 and D3 were not the wrongdoers but have got mixed up in the wrong-doing of the fraudster(s).

14.Second, P seeks to ascertain: (1) the whereabouts of the sums transferred out of P’s Bank Account; (2) the latest balance in the bank accounts where the sums were transferred; 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 P to trace the whereabouts of the sums, preserve the same and take necessary action to recover them against the wrong-doer(s). 

15.Third, I am satisfied that the discovery sought is specific and not unduly wide.  Apart from manner and time for compliance with any orders made against them and costs, no other objections were raised on the orders sought to be obtained in the Originating Summons and I therefore will take it Ds will not be in any difficulty to comply with the order sought on such terms made by this court.

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

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

The 1^st defendant was excused.

The 2^nd and 3^rd defendants were not represented and did not appear