Tsang Li Nor v. Hang Seng Bank Ltd and Another

DCMP 3020/2024

[2024] HKDC 1461

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3020 OF 2024

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DECISION

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Introduction and Background Facts

1.I have before me an application by the Plaintiff (“P”) by Originating Summons dated 5 June 2024 (“the OS”) against Hang Seng Bank Limited and HongKong and Shanghai Banking Corporation Limited (collectively, “the Banks”) for disclosure of the documents set out in the OS under the court’s inherent jurisdiction to grant Norwich Pharmacal relief.

2.P claims to be a victim of a fraudulent investment scam. In mid-2019, unknown person(s) (“Fraudsters”) claiming to be staff members of Top Sky Universal Group Limited (“Top Sky”) telephoned P and persuaded her to make investment in precious metal investment products which could yield high returns easily.

3.As a result, between 28 June 2019 to 7 November 2019, P was deceived into making a series of payments by cash and bank transfers totaling HK$2,850,000 into two bank accounts of Top Sky and TSU Limited respectively maintained with the Banks.

4.Only on 11 November 2019, when P had not received any investment returns as promised by the Fraudsters and upon checking with Top Sky’s staff that the Fraudsters did not work there, did P realize that she was defrauded.

5.P reported the matter to the Hong Kong Police (“HKP”) on 5 December 2019.

6.Subsequently, HKP informed P’s solicitors that there are bank accounts being withheld but they are unable to disclose any information without the consent of the data owner.

7.Accordingly, P now seeks an order for disclosure of documents relating to the incorporation of Top Sky and TSU Limited, the opening of their bank account held with the Banks, particulars of all payments in and out of those accounts from 28 June 2019 to the date of the order, and their current balance.

8.According to the correspondence with the Banks, they were served the OS and have indicated through that they adopt a neutral stance with regard to P’s application and did not intend to attend today’s hearing. The Banks have not attended today’s hearing.

9.Ms Cheng, counsel, appears on behalf of P.

Applicable principles

10.The applicable principles for Norwich Pharmacal relief are 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).

11.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 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 Order

12.Applying the above legal principles to the facts of the present case, I am satisfied that a Norwich Pharmacal order should be granted.

13.Firstly, from the bank statements, pay-in slips, the WhatsApp records with the Fraudsters, police statement and correspondence with HKP, there is before me cogent and compelling evidence that P has been defrauded to transfer her monies into the accounts maintained with the Banks.

14.Secondly, the information sought by P is highly germane to the identity and contact details of the holders of the accounts maintained with the Banks and the issue of fundflow. Disclosure of such information would likely reap substantial and worthwhile benefit to enable P to identify the wrongdoer(s) to enable her to commence proceedings against the wrongdoer(s) to recover or preserve her monies as well as enable P to serve any court documents on the identified wrongdoer(s).

15.Thirdly, I am satisfied that discovery sought is specifically defined and not unduly wide. I have also taken into account the neutral stance adopted by the Banks who have not suggested any difficulty in complying with the orders sought.

16.Having balanced the competing interest of the victim and the innocent party (the Banks) 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 as amended by me.

Ms Kelly H K Cheng, instructed by Yip, Tse & Tang, for the Plaintiff

The 1^st and 2^nd Defendants were not represented and did not appear