Globe Chemicals Gmbh v. Wide Gain Corporate Consulting Ltd and Another

DCCJ 1059/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1059 OF 2013

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DECISION

1.After being granted an ex parte Mareva Injunction against the Defendants on 2 April, the Plaintiff took out an inter parte summons on 3rd April to be returnable today to ask that the Injunctive Order to continue. Further on 8 April, the Plaintiff took out another summons asking for an order for disclosure in aid of the Injunctive Order already granted. Specifically, the Plaintiff asks for an order to compel the Hang Seng Bank (“the Bank”) with whom the 1^st Defendant had an account to produce bank documents in relation to an account number 774-392435-883 (“the Account”). It is said that the account is the very account which the Plaintiff was asked to pay money into.  Further the Bank is asked to disclose other bank accounts maintained with the bank in the name of the 1^st and 2^nd Defendants.

2.Mr Ko referred me to CTO (HK) v Li Man Chiu & others [2002] 2 HKLRD 875 where DJ Poon as he then was, has set out the legal principles involved. Adopting the approach of Hoffmann J in Arab Monetary Fund v Hashim and others (No 5) [1992] 2 All ER 911, Poon J also imposed three limits:

(1)   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)   The jurisdiction is more restricted than a request to a party for general discovery on an issue.  When documents are required to be disclosed, the third party should be entitled to the same specificity in the documents he is asked to produce as he would be served with a subpoena.

(3)   Even if the application is prima facie falling with the Bankers Trust principle, 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 (for which he is ordinarily compensated on an indemnity basis by the terms of the order) but by way of invasion of privacy and requiring breach of obligations of confidence to others.

3.Having read the affirmations and hearing submission made by Mr Ko representing the Plaintiff, I am satisfied that the information sought will enable the Plaintiff to trace the funds which the Plaintiff was led to transfer to the Defendants as this is the very account which the Plaintiff was asked to pay money into. 

4.I am also satisfied that the bank documents required to be disclosed had been specifically set out and could be identified by the bank.

5.I have been informed that the records in relation to the detail transaction of the account the Plaintiff now asks for are for a period between 13 March and 11 April 2013; 13 March was the day being just one day before the day the Plaintiff had made transfer of fund into the Account.  As to those documents in relation to the authorisation on the operation of the account set out in paragraph 2 (b) and (c), I am satisfied that such documents are relevant to the purpose of tracing the fund in the Account.

6.I am satisfied that the present application is within the ambit of section 21of the Evidence Ordinance, Cap.8.

7.I am satisfied that the present application is made for the purpose of ascertaining the existence, nature and location of assets with the primary purpose of preserving the assets or property which might otherwise be dissipated notwithstanding the injunction.

8.I am aware of the principle that the court would not lightly use its powers to order disclosure of full information touching the confidential relationship of banker and customer, I am of the view that such an order in the present case is justified even at this early interlocutory stage as the Plaintiff is to trace funds as there is strong evidence that it had been fraudulently deprived and delay might result in the dissipation of the funds before trial.

9.The Plaintiff has given an undertaking through its legal representative that such information would be used only for the purposes of the action to trace the funds and not for any other purposes.

10.I grant an order in terms of the draft order.

Mr. Tony Ko instructed by Messrs Wilson Yeung & Co. for the Plaintiff

1^st Defendant act in person and absent

2^nd Defendant act in person and absent