Ho, Yuen Yu Ivy v. Yehe Trade Ltd and Others

HCA 1789/2024

[2025] HKCFI 5977

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1789 OF 2024

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D E C I S I O N

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Introduction and Background

1.The Plaintiff (“P”) is a victim of a fraud whereby she was deceived to make multiple transfers to the bank accounts of the 1^st Defendant to 9^th Defendant (collectively “Ds”).

2.By an order, obtained ex parte, of DHCJ KC Chan dated 4 September 2024 (“the Ex Parte Order”), various injunctions were granted against Ds restraining the disposal of any of P’s funds received by them in their bank accounts (including the accounts of the 2^nd Defendant (“D2”) maintained with OCBC Bank (Hong Kong) Limited (“OCBC”) and of the 5^th Defendant (“D5”) maintained with the Hongkong and Shanghai Banking Corporation Limited (“HSBC”)).

3.At the hearing of P’s Inter-Parte Summons on 13 September 2024, Ds did not appear and the Ex Parte Order was ordered to be continued until judgment or further order (“the Injunction Order”).

4.On 22 July 2025, final judgment was obtained against 1^st to 5^th, 7^th to 9^th Defendants (“Final Judgment”). In particular, it was adjudged inter alia:

(1)  D2 do pay P the sum of HKD400,000 together with interest thereon at judgment rate of: (i) 8.875% per annum from 4 September 2024 to 31 December 2024; (ii) 8.622% per annum from 1 January 2025 to 31 March 2025; (iii) 8.276% per annum from 1 April 2025 to 30 June 2025; and (iv) 8.25% per annum from 1 July 2025 to the date of the Final Judgment; and thereafter at judgment rate until payment;

(2)  D5 do pay to P the sum of HKD600,000 together with interest thereon at judgment rate of: (i) 8.875% per annum from 4 September 2024 to 31 December 2024; (ii) 8.622% per annum from 1 January 2025 to 31 March 2025; (iii) 8.276% per annum from 1 April 2025 to 30 June 2025; and (iv) 8.25% per annum from 1 July 2025 to the date of the Final Judgment; and thereafter at judgment rate until payment.

5.On 4 September 2025, a garnishee order to show cause against D2 and D5 respectively was granted by Master Elaine Liu (collectively, “Garnishee Orders Nisi”).

6.Today, I have before me two applications by P:

(1)  For the Garnishee Orders Nisi be made absolute; and

(2)  For variation of the Injunction Order as against D2 and D5 to the effect and extent of allowing OCBC and HSBC respectively (collectively, “the Garnishee Banks”) to pay their judgment debts to P.

7.I am satisfied from the affirmations of service filed on behalf of P that D2, D5 and the Garnishee Banks have been properly served with the documents in relation to P’s applications and sufficient notice of today’s hearing given to them as required by the Rules of the High Court, Cap. 4A (“RHC”)[1].

8.By letter dated 18 November 2025 to P’s solicitors, OCBC stated that they will comply with the decision of the court up to the amount attached which at the time of service of the Garnishee Order to Show Cause is HKD251,334. They sought to be excused from attending today’s hearing. OCBC did not appear today.

9.By letter dated 20 November 2025 to P’s solicitors (as well as solicitors acting for the plaintiff in DCCJ 1528 of 2025), HSBC has stated inter alia that they will fully obey any garnishee order absolute made by the court. From the Affirmation filed on behalf of HSBC on 24 November 2025 (“HSBC’s Affirmation”), it is confirmed that the account of D5 maintained with HSBC was in credit as at the date of service of the Garnishee Order to Show Cause on 24 October 2025 but mentioned that they had also been served with a Garnishee Order to Show Cause in DCCJ 1528 of 2025 on 15 July 2025 requiring them to pay the funds in the same account to the judgment creditor (Lee Yuk Har) in DCCJ 1528 of 2025 and that the hearing for the garnishee order nisi to be made absolute will be heard in the District Court on 11 December 2025. It was also mentioned therein that although it is expected that the account will still be in credit if the garnishee order absolute is granted and payment is made to the plaintiff in DCCJ 1528 of 2025, there will be insufficient funds in the account to fully satisfy the judgment debts owed to P.

10.Upon reading HSBC’s Affirmation, I caused my clerk to enquire with solicitors acting for the plaintiff in DCCJ 1528 of 2025 to confirm if they were informed of today’s hearing and whether they wished to attend. Mr Ling appeared today on behalf of the plaintiff in DCCJ 1528 of 2025.

11.Ms Pan, solicitors, appeared for P.

Discussion and Disposition

12.O.49, r.1(1) of RHC provides:

“Where a person (in this Order referred to as ‘the judgment creditor’) has obtained a judgment or order for the payment by some other person (in this Order referred to as ‘the judgment debtor’) of a sum of money amounting in value to at least $1,000, not being a judgment or order for the payment of money into court, and any other person within the jurisdiction (in this Order referred to as ‘the garnishee’) is indebted to the judgment debtor, the Court may, subject to the provisions of this Order and of any written law, order the garnishee to pay the judgment creditor the amount of any debt due or accruing due to the judgment debtor from the garnishee, or so much thereof as is sufficient to satisfy that judgment or order and the costs of the garnishee proceedings.”

Re: D2 and OCBC

13.In respect of the application concerning D2’s account held with OCBC, I am satisfied that:

(1)  P, as judgment creditor, has obtained judgment for payment of a sum of money of over $1,000;

(2)  OCBC is within the jurisdiction; and

(3)  As D2 has maintained an account with OCBC and there is a credit balance in that account, OCBC is indebted to D2.

14.Given the neutral position of OCBC, and I can think of no reasonable ground why the garnishee order nisi should not be made absolute, I therefore will make the garnishee order absolute against OCBC.

15.As for variation of the Injunction Order, although on its terms I cannot see how it continues after Final Judgment, out of abundance of caution and for the avoidance of any doubt, I would allow a variation to the effect and extent to allowing OCBC to pay P the sums due from OCBC to D2.

16.Accordingly, I will make an order in terms of the draft orders in respect of OCBC and D2 as amended by me.

Re: D5 and HSBC

17.In respect of the application concerning D5’s account maintained with HSBC, I take the view that the plaintiff in DCCJ 1528 of 2025 is “some other person than the judgment debtor” and “is or claims to be entitled to the debt sought to be attached”: see O.49, r.6 of RHC.

18.Mr Ling confirmed that the plaintiff in DCCJ 1528 of 2025 opposes P’s application to make the garnishee order nisi absolute or that any order garnishee absolute should be subject to the plaintiff’s garnishee order nisi already granted in June 2025.

19.In Rooke & Another v HV Construction Services Ltd v MK Lam & Co (A Firm) [1998] 2 HKLRD 319, it was held that it is a matter within the discretion of the court whether or not to make absolute a garnishee order nisi. There were no general principles laid down upon which the discretion fell to be exercised. The question was whether there was any reasonable ground why the orders should not be made. See at 322H-323C per Godfrey JA. The learned judge had referred to Roberts v Death (1881) 8 QBD 319 at 324 where Cotton LJ held:

“I am of opinion that whenever the judge is informed on any reasonable ground that such an order ought not be made, he should withhold making the garnishee order absolute for taking the money of one person to pay the debt due from another.”

20.Furthermore, in Rooke, Godfrey JA held that at 322B-D that in considering whether or not to exercise its discretion to make absolute a garnishee order, the court must bear in mind not only the position of the judgment creditor, the judgment debtor and the garnishee, but also the position of the other creditors of the judgment debtor; and have regard to the fact that proceedings are on foot for enforcing the distribution of the available assets of the judgment debtor among the creditors pari passu.

21.As I indicated to Ms Pan and Mr Ling, I had concerns on making the garnishee order nisi absolute in view of the fact that I have now been informed by HSBC that the plaintiff in DCCJ 1528 of 2025 had obtained a garnishee order nisi in respect of the same account maintained with them and this was actually earlier than P’s obtaining of the garnishee order nisi. Furthermore, in view of the fact there apparently is insufficient funds in D5’s account to satisfy both judgment creditors, that there would be real grievance to the plaintiff in DCCJ 1528 of 2025 if the garnishee order nisi was made absolute.  

22.Ms Pan submitted that in the present case, as no winding-up proceedings having been commenced or scheme of arrangement is imminent, the choice between allowing one creditor to obtain a preference or ensuring a pari passu distribution does not arise, relying on Rooke at 323D-G which referred to the decision of Hunter J in Wardley Ltd v Aik San Realty Ltd (unrep) HCA 379/1984, 18 December 1984:

“… if the Court has a choice between allowing a particular creditor to obtain a preference or ensuring a pari passu distribution of a debtor’s total assets amongst his creditors, it will opt for the latter and equality. But in the case of a corporate debtor no choice arises unless a pari passu distribution will follow from a refusal to make a charging order absolute ie because winding-up proceedings have already been commenced or perhaps because their equivalent in the form of some scheme of arrangement is imminent. Unless these circumstances exist the above choice is not available to the Court.”

23.Even if Ms Pan is correct, I would have thought that I could have regard to the other circumstances of the present case as set out above in paragraph 21 (namely, the position of other creditors of D5) and take the view that it is not just to make the garnishee order absolute.

24.I had expressed to Ms Pan and Mr Ling my provisional view that a pari passu distribution would be more just in the circumstances. I also drew attention to the case of Banco de Chile v Yong Ming Tai Technology Trade Co., Limited [2019] HKCFI 1233 not too unlike the present case. That case concerned a cyber-attack carried out which caused funds belonging to the plaintiff to be paid to a first tier recipient that then transferred the funds to the second tier recipient, the 3^rd defendant therein. The plaintiff obtained a Mareva and proprietary injunction against the third defendant and ultimately, final judgment upon the failure to give notice of its intention to defend. The plaintiff however later received notice from another victim of a cyber-fraud (“M”) that final judgment and a garnishee order absolute against the third defendant was obtained in another High Court action. The plaintiff and M later agreed to a pari passu division of the funds transferred to the 3^rd defendant. DHCJ Le Pichon at §12 held that the agreement was clearly sensible and should be given effect to and accordingly allowed variation of the injunction to enable payment out of the 3^rd defendant’s funds to the plaintiff and M.

25.I stood the matter down for Ms Pan and Mr Ling to consider whether agreement can be reached for a pari passu distribution between their clients or there to be some other proposal for the way forward.

26.Ms Pan and Mr Ling has now confirmed that they have reached agreement on the pari passu distribution of the funds of D2 in proportion of their respective judgment claims against D2. I will therefore make an order in terms of the draft orders submitted to me (as amended by me).

27.I thank both Ms Pan and Mr Ling for their assistance in this matter.

Ms Chris Pan, of Messrs YAN LAWYERS, for the Plaintiff (Judgment Creditor)

Mr T Ling, Legal Executive of Messrs Ellen Au & Co, for the Plaintiff (Judgment Creditor) in DCCJ 1528/2025

The 2^nd and 5^th Defendants (Judgment Debtors) were not represented and did not appear

The Garnishee of the 2^nd Defendant and the Garnishee of the 5^th Defendant were not represented and did not appear