Lo, Leung Wing and Another v. Bank of China (Hong Kong) Ltd and Another

HCMP 2824/2024

[2025] HKCFI 2103

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2824 OF 2024

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BETWEEN

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D E C I S I O N

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Introduction and Background Facts

1.By Originating Summons filed on 31 December 2024 (“the OS”) the Plaintiffs (“Ps”) seek against the 1^st Defendant (“D1”) and the 2^nd Defendant (“D2”), both banks (collectively, “The Banks”), orders for disclosure in terms of the OS pursuant to s.21 of the Evidence Ordinance, Cap. 8 (“EO”) and under the court’s inherent jurisdiction to grant Norwich Pharmacal relief. An Affirmation of the 1^st Plaintiff is filed in support of the OS on behalf of Ps.

2.Ps are the sons of the late Lo Kit (“the Deceased”) who passed away on 4 April 2024 at the age of 89. According to Ps, the Deceased became mentally incapacitated since February 2023. However, on 23 June 2023, the Deceased executed: (1) an enduring power of attorney appointing Ps’ half sister (“Miki”) as his attorney; and (2) a will under which Miki is named as the Deceased’s sole executrix and sole beneficiary. On the other hand, according to P1 when he discussed with the Deceased on the issue of wills: (1) on 30 December 2023, the Deceased told him that he had no recollection of there being a sole beneficiary but agreed that his inheritance should be divided amongst his children subject to the marital status of Miki; and (2) on 25 February 2024, the Deceased confirmed to P1 his assets would not be left to just one person.

3.Currently, there are ongoing probate proceedings between P1 and Miki in Hong Kong and in Canada.

4.According to Ps, after the Deceased’s death it was revealed:

(1) The Deceased had maintained 4 accounts with D1 but all of them were closed on 22 April 2023; and

(2) The Deceased had maintained 6 accounts with D2 but there were substantial depletions of the accounts.

5.By the OS, Ps seek the bank statements and/or records of the accounts of the Deceased maintained with the Banks (“the Accounts”) since February 2023 to the date of order.

6.The Banks have been served the OS and the supporting Affirmation. Through correspondence with the Ps’ solicitors and this court, the Banks have indicated that they adopt a neutral stance to the OS. Their comments have now been incorporated into a Draft Order submitted to me by Mr Lau and Mr Law, counsel who appeared on behalf of Ps. The Banks have sought to be excused and have not attended today’s hearing. I had excused the attendance of D1 upon receiving a letter from solicitors for D1 dated 2 May 2025.

Applicable principles

7.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).

8.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.

9.However, in respect of the first requirement, it has been held that Norwich Pharmacal relief may also be invoked if the applicant is able to show a prima facie case of a wrong having been committed: see e.g. Chang Wa Shan v Chan Chun Chuen [2009] 6 HKC 201 at §11 per Poon J (as he then was).

10.Furthermore, it has been held that Norwich Pharmacal relief is not confined to the identification of the wrongdoer but extends to the discovery of other information that will enable the person who claims to have been wronged to protect his interest. In an appropriate case, where it is necessary in the interests of justice, Norwich Pharmacal relief can be obtained, not on the basis of an actual tort, but to find out if a wrong had been committed against the applicant and if so, the precise nature of the wrong: see Evergreen International Storage & Transportation Corp v The Hong Kong and Shanghai Banking Corporation Limited & Anor [2008] 5 HKLRD 49 at §§33 and 60 per DHCJ Lisa Wong SC (as she then was); and Wong Lam Yuk v Hang Seng Bank Limited & Ors [2025] HKCFI 1492 at §14 per DHCJ Le Pichon (as she was then).

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

(1) Firstly, 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) Limited v Li Man Chiu & Others [2002] 2 HKLRD 875, §§12-13 per Deputy Judge Poon (as he then was); and Hwang Joon Sang & Anor v Golden Electronics Inc. & Ors (No 2) [2021] 2 HKLRD 87 at §§8-9 per Coleman J.

Analysis and Orders

12.Applying the above legal principles to the facts of the present case, I am satisfied that the orders sought, whether under the Norwich Pharmacal jurisdiction of the court or under s.21 of EO, should be granted against the Banks.

13.Firstly, from the affirmation filed in support of the OS, I am satisfied that there is prima facie case that the Deceased had lost his mental capacity to manage his affairs since February 2023 and it was Miki who transferred or dissipated the assets in the Accounts. Potentially, there can be claims for unjust enrichment and any assets transferred by a mentally incapacitated person may be subject to a resulting trust: see e.g. Halsbury’s Law of England, Vol. 88, §539 and Simpson and Others v Simpson and Another [1992] 1 FLR 601 at 617-618 and 623. Given that the will of the Deceased has yet been proved, Ps may be beneficiaries of the estate of the Deceased under s.4(5) of the Intestates’ Estates Ordinance, Cap. 73, and may bring a tracing claim to recover any assets which have been improperly abstracted from the estate. Therefore, I am satisfied that there is a prima facie case of wrong being committed against the estate and Ps, as persons entitled to the estate. It is in the interests of justice for relief be granted to enable them to find out if any wrongs have been committed and if so, the precise nature of the wrong.

14.Secondly, I am satisfied that there is a real prospect that the requested documents would enable Ps to ascertain the whereabouts of the assets of the Accounts and reap real and substantial benefit to enable Ps to discover what may well be the estate’s assets and takes steps to preserve such assets (such as apply to appoint an administrator ad colligenda bona or administrator pendent lite and/or for a proprietary injunction against any wrongdoer).

15.Thirdly, I am satisfied that the discovery sought is specifically defined and not unduly wide. I have also taken into account the neutral stance adopted by the Banks who has 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).

Mr Kerby Lau and Mr Paul Law, instructed by Hugill & Ip, for the 1^st and 2^nd Plaintiffs

Wilkinson & Grist, for the 1^st Defendant, attendance excused

The 2^nd Defendant, not represented and being absent