Khalil Basma and Another v. Sisco Corporate Consulting Ltd

DCCJ 2566 /2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2566 OF 2012

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D E C I S I O N

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1.This is the application by the Plaintiffs for Judgment in default of defence in this section against the Defendant. The Statement of Claim was properly served on the Defendant but up till now it has not filed any defence.

Background of the case

2.The Plaintiffs are living in Senegal and are holders of Senegal passports.  The 2nd Plaintiff is the father of the 1st Plaintiff.  The 2nd Plaintiff is engaging in the business of shoes trading under the trade name King of Shoes and is engaging in purchasing and importing shoes from China to Senegal for sale.  The 1st Plaintiff assists the 2nd Plaintiff in the latter’s business and in communicating with the suppliers of shoes.

3.The Defendant is a company incorporated in 2001 in Hong Kong under the Companies Ordinance.  The 2nd Plaintiff has been purchasing shoes from a company in mainland China which is known as Shenzhen Y Jiafu Shoes Company Limited, hereinafter called “YJF”, for about 10 years.  At the end of March 2012, the 1st Plaintiff on behalf of the 2nd Plaintiff concluded a contract for the purchase of a batch of shoes with YJF.  The Plaintiffs duly paid €30,000 to YJF on or about 12 April 2012.

4.Commencing on or about 13 April 2012, the 1st Plaintiff received e-mail correspondences emanated from an e-mail address, namely [email protected], hereinafter referred to as “the fake e-mail address”.  The 1st Plaintiff believed that the said fake e-mail address was a genuine e‑mail address of YJF.  He did not know that the same was a fake e-mail address not belonging to YJF and controlled by unknown persons. He replied emails to the fake e-mail address.

5.By an e-mail dated 5 June 2012 emanated from the fake e-mail address, the Plaintiffs were instructed to transfer the balance of the purchase price for the said purchase of a batch of shoes referred to herein above to a bank account opened in the name of the Defendant with the CITIC Bank International Limited. Believing that the said bank account was a bank account belonging to or nominated by YJF for the purpose of paying YJF for the price of the goods order, the Plaintiffs on or about 8 June 2012 gave instructions to their bank to transfer money from the Plaintiff’s bank account to the said bank account.  On or about 14 June 2012, the Plaintiff’s bank, namely, Clariden Leu, caused €80,972.67 to be paid from the Plaintiff’s joint bank account to the said bank account through telegraphic transfer.  On or about 15 June 2012, upon communications through SMS and telephone conversations between the 1st Plaintiff and the staff of YJF and then subsequently through emails between the genuine e-mail address, addresses of YJF and the 1st Plaintiff, it was found out that the said bank account was and is not an account belonging to YJF or nominated by YJF, that the Plaintiffs had been deceived into making the payment of €80,972.67 to the said bank account.  The fake e-mail address was not a genuine e-mail address of YJF and unknown persons had pretended to be staff of YJF using the fake e-mail address in sending emails to the 1st Plaintiff and receiving emails from the 1st Plaintiff.  Subsequently a report was made to the Hong Kong Police.

6.The Plaintiffs have suffered loss and damage in the sum of €80,972.67 by reason of the matters herein before mentioned.  On the facts set out above, I find that the losses and damages suffered by Plaintiffs were caused by the deception done by the Defendant and therefore I enter Judgment in favour of the Plaintiffs against the Defendant for paragraphs 1, 2, 3, 4, 5, 6 of the summons dated 5 March 2013.  I order that the Defendant do pay to the Plaintiffs the sum of €80,972.67 within 14 days from today with interest thereon at Judgment Rate, commencing from 14 June 2012 to satisfaction.

7.I order that the Defendant do pay the Plaintiffs costs of this action, to be taxed by court.

Mr Lam SW Joseph, Barrister, instructed by J Chan, Yip, So & Partners, for the plaintiffs

Defendant, in person, absent