Last Brand, Inc. v. Fan Suk Han Trading As Estar and Another

HCA 1565/2025

[2025] HKCFI 5965

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1565 OF 2025

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DECISION

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Introduction and Factual Background

1.Today is the first hearing of two Summonses:

(1)     By Summons dated 6 October 2025 (“Injunction Summons”), the Plaintiff (“P”) applies:

(a)     against the 1^st Defendant (“D1”): (i) a proprietary injunction restraining the disposal of the sum of US$5,012,435.51 in the account of “eStar” with the Hongkong and Shanghai Banking Corporation (“HSBC”) numbered 801-677378-838 (“eStar’s Account”) and the sum of HK$2.55M in the account of D1 with HSBC numbered 032-779308-833 (“D1’s Account”); (ii) a Mareva injunction restraining disposal of assets within Hong Kong up to the amount of US$5,012,435.51; and (iii) ancillary disclosure orders; and

(b)     against the 2^nd Defendant (“D2”): (i) a proprietary injunction restraining the disposal of HK$5M in the account of D2 with HSBC numbered 805-176500-833 (“D2’s Account”); (ii) a Mareva injunction restraining the disposal of assets within Hong Kong up to the amount of HK$5M; and (iii) ancillary disclosure orders.

(2)     By Summons dated 6 October 2025 (“Disclosure Summons”), P applies for disclosure against HSBC for various documents set out therein in relation to eStar’s Account, D1’s Account and D2’s Account.

2.According to the Affirmation filed in support of the Injunction Summons:

(1)     P is a limited private company incorporated in the United States operating an online platform known as “Quince” or “quince.com”;

(2)     P holds a number of subsidiaries including a private limited company incorporated in Hong Kong (“Last Brand”) which sources fashion and home essentials for the purpose of reselling on Quince;

(3)     One of P’s suppliers (“Huaxiang”) has cooperated with P since 2021.  P would pay Huaxiang through an online secured platform.  However, in around May 2025, as the relevant purchase order was large, it was agreed by the parties that P would transfer US$5,012,435.51 (“the Sum”) by wire transfer;

(4)     On around 30 May 2025, a staff of P asked Huaxiang for the wire transfer information which was then provided by a staff of Huaxiang (“Peggy”) with the email address [email protected] on the same day;

(5)     On 2 June 2025, P’s Vice President of Accounting (“Brent”) received an email from a staff member of Last Brand (“May”) forwarding an email sent from peggyhung@huaxianggroups.biz (“Fraudulent Email Address”) purportedly directing the wire transfer to Huaxiang’s sister company in Hong Kong.  A payment instruction slip was attached with details of the beneficiary being “eStar” and eStar’s Account;

(6)     Later on the same day, an email was sent from the Fraudulent Email Address to May’s email, copied to Brent and another staff of P, asking them to confirm the status of the wire transfer;

(7)     As a result, the Sum was released from P’s bank account to eStar’s Account on 3 June 2025;

(8)     Subsequently, on 4 June 2025, when Brent instructed May to confirm with Peggy receipt of the Sum and when it was confirmed that Huaxiang had not received the same, the fraud was discovered.   Peggy confirmed that she had not provided the details of eStar’s Account to P, the Fraudulent Email did not belong to her or any staff of Huaxiang and eStar’s Account was unrelated to Huaxiang;

(9)     On 4 June 2025, the matter was reported to the police in Hong Kong (“HKP”) and the United States, as well as to HSBC;

(10)     On around 12 August 2025, HKP provided to P’s solicitors the details of D1 and D2 as well as the account numbers of D1’s Account, D2’s Account and eStar’s Account.  They were orally informed by HKP inter alia that part of the Sum was converted to HK$2.55M and HK$5M and transferred out of eStar’s Account to D1’s Account and D2’s Account respectively.  The remaining balances in D1’s Account and D2’s Account were HK$2.55M and HK$4,811,305.65 respectively;

(11)     By letter dated 18 August 2025, HKP further informed that the amount of HK$31,352,734.60 in eStar’s Account has been frozen by HKP;

(12)     The present action was commenced against D1 and D2 by Writ of Summons filed on 22 August 2025 (“the Writ”);

(13)     In the Indorsement of Claim to the Writ, it is pleaded that P, as a victim of email fraud, claims against D1 and D2 for breach of constructive trust, knowing assistance, knowing receipt, unlawful means conspiracy, conspiracy to injure and/or unjust enrichment.  P seeks inter alia declarations that D1 and D2 hold the Sum and HK$5M respectively on constructive trust for P, payment of the Sum by D1 and HK$5M by D2, or alternatively, damages and equitable compensation to be assessed;

(14)     D1 has been served the Writ and has filed an Acknowledgment of Service on 2 September 2025 indicating her intention to contest this action;

(15)     However, P has not been able to effect personal service of the Writ on D2.

3.In an affirmation of service filed on behalf of P on 9 October 2025, it was stated inter alia that the Injunction Summons and supporting affirmations (collectively “the Documents”) were served on D1 and D2 by prepaid ordinary post on 6 October 2025. 

4.However, the Documents were posted to D1’s address at Shek Ho House. Whilst this was the address for service stated in the Acknowledgment of Service filed by D1 on 2 September 2025, a Notice of Change of Address for Service was subsequently filed by D1 on 6 October 2025. 

5.D1 has appeared today (with the assistance of a court interpreter) but confirmed that she had not received the Documents.  She was only notified of today’s hearing by my clerk when I caused enquiries to be made by my clerk as to whether she would be filing submissions for today’s hearing.  Plainly, prior to today’s hearing, there was no effective service of the Documents on D1 as when the Documents were served on that the address at Shek Ho House, it was not the abode or residence of D1 and the Documents had not in fact reached her: see White v Weston [1968] 2 QB 647 at 661.  Whilst D1 had now been served with the Documents, given that she was served less than two clear days prior to today’s hearing, P should be treated as proceeding against D1 ex parte on notice.  See Ming Yang Capital Limited v China Vered Asset Management (Hong Kong) Limited [2024] HKCFI 1444 at §§36, 74-76. 

6.As for D2, given that the Documents were posted to him at an address which according to 2^nd Affirmation of Sha Yan Ming in a previous attempt to serve the Writ on D2 by registered post at that address was returned undelivered, and a security guard had informed a staff of P’s solicitors that D2 had move out of that address, though it may be the last known address of D2 and to date the Documents have not been returned undelivered, I was not satisfied that D2 was served at a correct address and would have received the Documents.  D2 does not appear today.  P should be treated as proceeding ex parte against D2. 

7.At today’s hearing, Mr Kwok, counsel, appeared for P.   He accepted that in respect of the Injunction Summons, P should be treated as proceeding ex parte against D2 and ex parte on notice against D1.

8.HSBC has been served the Disclosure Summons on 6 October 2025. By letters dated 8 October 2025 and 9 October 2025 to P’s solicitors, HSBC indicated that it takes a neutral stance and, provided that its comments therein are incorporated into the order sought by P, it will not contest the Disclosure Summons.  HSBC has not appeared today.  A draft Revised Disclosure Summons incorporating HSBC’s comments has been submitted to me today by Mr Kwok.

Discussion

Re: Injunction Summons

9.I allowed a short adjournment for D1 to be served the Documents and to discuss with Mr Kwok the matter going forward.  Parties confirmed after the adjournment that D1 agreed to a Mareva injunction and ancillary disclosure order sought by P pending the determination of the trial of this action or further orders of the Court.  I will therefore make an order in terms of the draft order that was submitted to me as revised by me.

10.Mr Kwok confirmed that no orders were being sought today against D2 and that the Injunction Summons as against D2 should be adjourned to 7 November 2025 for service of the Injunction Summons on D2.  I so order.

Re: Disclosure Summons

11.The applicable principles governing an order under s. 21 of Evidence Ordinance, Cap. 8 (“EO”) are 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) Ltd v Li Man Chiu & Others [2002] 2 HKLRD 875, §§12-13 per Deputy Judge Poon (as he then was); and Hwang Joon Sang v Golden Electronics Inc. (No 2) [2021] 2 HKLRD 87 at §§8-9 per Coleman J.

12.Applying the above legal principles to the facts of the present case, I am satisfied that the orders sought against HSBC should be granted.

13.Firstly, I am satisfied that from the affirmations filed, there is cogent and compelling evidence to demonstrate that a prima facie case of wrong being committed against P and that it was a victim of an email fraud.  In this action, P has made a proprietary claim to the Sum and seeks to trace the whereabouts of the Sum.  There is a real prospect the information sought would lead to the location and preservation of the Sum.  At the moment, there is still a shortfall between the total amount in eStar’s Account, D1’s Account and D2’s Account, and the Sum.

14.Secondly, 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 HSBC who has not suggested any difficulty in complying with the orders sought and its comments have now been incorporated in the draft orders sought.

15.Thirdly, having balanced the competing interest of the victim and the innocent party (HSBC) 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 Revised Disclosure Summons as amended by me (with revisions to the correct account numbers of D1’s Account and D2’s Account as subsequently informed by HKP).

16.Although Mr Kwok also sought disclosure under the court’s inherent jurisdiction, O.24, r.7A of the Rules of the High Court and s.42(2) of the High Court Ordinance, Cap. 4, given that I am prepared to grant the orders sought under s.21 of EO it is unnecessary for me to consider the application under those bases.

Mr Jonathan Kwok, instructed by Messrs S.T. Cheng & Co., for the Plaintiff

The 1^st Defendant appeared in person

The 2^nd Defendant and the Respondent were not represented and did not appear