Chung Paven v. Li Libo

DCCJ 2989/2024

[2024] HKDC 1225

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2989 OF 2024

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DECISION

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Introduction and Background Facts

1.I have before me an application by Summons dated 17 June 2024 (“the Summons”) by the Plaintiff (“P”) against Hang Seng Bank Limited (“the Bank”) for disclosure of the document set out in the schedule to the Summons pursuant to s 21 of the Evidence Ordinance, Cap 8 (“EO”) and under the court’s jurisdiction to grant Norwich Pharmacal relief.

2.P claims to be a victim of online fraud.

3.On or around mid-February 2024, P received a call from an unknown number and the call was then transferred to the purported Xiamen Public Security Bureau.  A purported police officer and prosecutor in charge of a case claimed that P was involved in a money laundering case in the Mainland.

4.P claims that ultimately he was deceived into remitting a total of USD180,000.00 by way of three transfers to accounts maintained with the Bank.  Two of the transfers were made by P on 11 March 2024 and 13 March 2024 to the bank account of the Defendant (“D”) maintained with the Bank (“D’s Account”).

5.After the transfers, P gradually realized he was scammed and reported the scam to the Hong Kong police (“the Police”) on or around 29 March 2024.  According to the Police, D’s Account has been frozen.

6.P now seeks an order for disclosure of copies of: (1) all documents showing the full English and Chinese names of D, telephone number, email address and necessary contact information for locating D; (2) all identity documents and address proof of D’s Account; and (3) the monthly account statements of D’s Account covering the period from 11 March 2024 to the date of the order.

7.Ms Lai, solicitor, appears on behalf of P.  The Bank was served the Summons but have indicated by letter dated 2 July 2024 that they adopt a neutral stance with regard to P’s application and will not attend today’s hearing.

Applicable principles

8.The applicable principles governing an order under s 21 of EO are well-established.  Although it has been said that a s 21 order is justified where the plaintiff seeks to trace funds which in equity belong to him and of which there was strong evidence that he has been fraudulently deprived, there are 3 limits:

(1)  First, the plaintiff must demonstrate a real prospect that the information may lead to the location or preservation of assets to which he is making a proprietary claim;

(2)  Secondly, the documents sought to be disclosed must be identified with some specificity as would be expected of a subpoena; and

(3)  Thirdly, the court needs to balance the potential advantage against the detriment to the person against whom the order is sought, not merely in terms of costs but by way of invasion of privacy and requiring breach of obligations of confidence to others.

See CTO (HK) Ltd v Li Man Chiu & Others [2002] 2 HKLRD 875, §§12-13.

9.The applicable principles governing applications for Norwich Pharmacal relief are also well-settled.  It is not a usual order and will not be lightly granted in the absence of powerful factors:

(1)  It is made against an innocent party whose only involvement is to become mixed up in the tortious or wrongful activities of others;

(2)  The wrongdoing exists only on the part of a person or persons against whom no relief may be sought at the stage of the application and against whom there is probably insufficient evidence to found an action;

(3)  There will usually be a legal relationship between the innocent person against whom a discovery order is sought and the alleged wrongdoer, and the relationship may involve strict duties to be observed on the innocent party’s part.  Any discovery to be made will involve a breach of confidentiality and may expose the innocent party to civil liability and possibly even criminal liability; and

(4)  The court must accordingly balance the competing interests of the victim of the alleged wrongdoing and an innocent party caught up in the wrongdoing.

See A Co v B Co [2002] 3 HKLRD 111 at §12 per Ma J (as he then was).

10.In A Co v B Co at §13, the main requirements for Norwich Pharmacal relief were set out:

(1)  There must be cogent and compelling evidence to demonstrate that serious tortious or wrongful activities have taken place (where fraud or similar serious allegations are made, the degree of proof must correspondingly be 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 likely to be made there must be a serious possibility 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 and Orders

11.Applying the above legal principles to the facts of the present case, I am satisfied whether the jurisdictional basis is under s 21 of EO or Norwich Pharmacal relief, the orders sought should be granted.

12.There is before me cogent and compelling evidence that P has been defrauded to remit sums of monies to D’s Account.

13.The information sought by P are highly germane to the identity and contact details of D and the issue of fund flow.  Disclosure of such information would likely reap substantial and worthwhile benefit to enable P to preserve and/or recover monies which he has made a proprietary claim against D in this action as well as enable P to serve court documents on D.

14.The discovery sought is specifically defined and not unduly wide.  I have also taken into account the neutral stance adopted by the Bank who have not suggested any difficulty in complying with the orders sought.

15.Having balanced the competing interest of the victim and the innocent party (the Bank) caught up in the wrongdoing, and mindful that the power to order disclosure should be exercised with great caution, I would make an order in terms of the draft Order submitted to me save the order as to costs should be amended to read: “The Plaintiff do pay HSB the costs of and occasioned by this application and all reasonable costs and expenses incurred in complying with this Order, to be taxed if not agreed.”

Ms S Lai, of YAN LAWYERS, for the Plaintiff

Hang Seng Bank Limited, was not represented and did not appear