Wenda Co Ltd v. Dbs Bank (Hong Kong) Ltd

HCMP 2419/2023

[2024] HKCFI 285

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2419 OF 2023

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BETWEEN

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D E C I S I O N

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1.This is the Plaintiff’s application for discovery of documents against the Defendant, DBS Bank (Hong Kong)  Limited (“DBS”), per Norwich Pharmacalprinciples. The background to the proceedings is set out in the first affirmation of Xiong Wei, the chairman and legal representative of the Plaintiff, a PRC company. The relief sought relates to the bank account held by Effs Global Investments Company Limited which will be referred to “Effs” and “Effs DBS account”.

2.In summary, the Plaintiff brought an action in the UK, alleging that Effs had fraudulently diverted the Plaintiff’s funds into Effs DBS account.  Effs, a defendant in the English action, admits to having received the funds belonging to the Plaintiff. The Plaintiff obtained tracing and declaratory relief from the English court against several defendants, including Effs and Syner, English companies set up by the wrongdoers to facilitate fraudulent transfers, and Wang Jinhong, a former director of the Plaintiff until 2019/2020.

3.On 26 November 2021, the Plaintiff obtained a proprietary injunction against, inter alia, Effs (“the Jacobs Order”).

4.On 19 October 2022, Butcher J ordered Effs to make disclosure to aid the tracing of assets subject to the Plaintiff’s proprietary claim (“the Butcher Order”). It required the disclosure of and details of all bank accounts that received payments from buyers of the Plaintiff’s goods and advances from any finance company. 

5.Subsequently, while Effs disclosed details of the DBS account, it did not disclose the Effs DBS statements.  None of those statements has been provided to the Plaintiff.  The Plaintiff has exhausted all avenues for obtaining the statements.  Effs have deployed dilatory tactics to delay producing anything; hence, the necessity for the present application.  DBS’ stance is that it takes a neutral position in this application but in its letter dated 21 December 2023, it suggested various amendments to the order sought in the originating summons dated 18 December 2023 that is before this court.

6.One of the principal concerns of DBS was that it was asked to provide documents prior to the seven-year period that banks are required to retain records, ie pre-January 2017.  In fact, the commencement date sought is premised on the Butcher Order which provided for disclosure of Effs DBS statements from 7 October 2013 to the date of the order to be made.  The relevant correspondence for the purposes of the present application consists of six letters dated 21 December 2023, 5 January, 10 January, two letters dated 11 January and 12 January 2024.

7.Having considered the latest revised draft order in the light of that correspondence, I am satisfied that DBS concerns have been properly and adequately addressed. A copy of the latest marked-up draft order the court is invited to make was sent to DBS on 12 January 2024.  The court was informed at the hearing that there was a telephone conversation between the solicitors representing the Plaintiff and the Defendant, and that DBS had no comment on that draft. 

8.One other matter that I should mention is that the order provides for costs of the bank to be paid on an indemnity basis, and that is based on the decisions of A Co v B Co [2002] 3 HKLRD 111 and Cinepoly Records Co Ltd & Others v Hong Kong Broadband Network Ltd & Others [2006] 1 HKLRD 255.

9.Accordingly, I will make an order in terms of the order handed up at the hearing.

Ms Nicole Chui, instructed by H Y Leung & Co LLP, for the Plaintiff

The Defendant was absent