UNIONTRADE S.P.A v. THE BANK OF EAST ASIA, LTD

HCMP 830/2025

[2025] HKCFI 3040

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 830 OF 2025

_______________________

______________________

______________________

_______________

D E C I S I O N

_______________

Introduction and Background Facts

1.  By Originating Summons filed on 22 May 2025 (“the OS”) the Plaintiff (“P”) seeks against the Defendant (“the Bank”) orders for disclosure in terms of the OS under the court’s inherent jurisdiction to grant Norwich Pharmacal relief. An Affirmation of Tsui Stephanie exhibiting the draft affirmation of Mr Kubota (which has now been sworn) is filed on behalf of P in support of the OS (“Supporting Affirmation”).

2.  P, is an import-export company incorporated in Italy.

3.  On 24 April 2025, an unknown individual posing as the Chairman and CEO of the parent company of P (“the Yoshiro Impersonator”) contacted the Managing Director of P (“Mr Sun”) through WhatsApp, informing Mr Sun that a highly confidential acquisition deal was in progress and instructed him to contact a Mr Patrick Sarch of White and Case (“the Sarch Impersonator”).

4.  Between 24 April 2025 and 13 May 2025, the Yoshiro Impersonator and Sarch Impersonator liaised with Mr Sun and fraudulently deceived Mr Sun to transfer sums totaling EUR2,528,245 from P’s bank account to various bank accounts including the sum of EUR488,756.67 on 9 May 2025 and EUR489,988 on 13 May 2025 to the bank account of HQW Trade Limited maintained with the Bank.

5.  Mr Sun became suspicious when on 14 May 2025, the Yoshiro Impersonator instructed him to make a final payment of EUR987,896.67 which was approximately double the amount of the previous transaction and would compromise P’s cash flow stability and prevent settlement of critical short-term account payables. Mr Sun then escalated his suspicions to his management and the fraud was discovered. Immediate steps were taken to stop the EUR488,756.67 and EUR489,988 payments. On 15 May 2025, the matter was reported to the Hong Kong Police and the Milan Police.

6.  By the OS, essentially P seeks the bank statements in respect of account no. 01525668128262 held with the Bank in the name of HQW Trade Limited (“the Account”) since 24 April 2025, the current balance in the Account, account opening forms, bank mandates etc, contact details of persons authorised to operate the Account and full particulars of the transfers into and out of the Account since 24 April 2025.

7.  The Bank has been served the OS and the Supporting Affirmation. Through correspondence with P’s solicitors, the Bank’s solicitors 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 Ms Tsui, a solicitor, who appeared on behalf of P.

Applicable principles

8.  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).

9.  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.

Analysis and Orders

10.  Applying the above legal principles to the facts of the present case, I am satisfied that the orders sought in the Draft Order should be granted against the Bank.

11.  Firstly, from the Supporting Affirmation, I am satisfied that that there is cogent and compelling evidence that a prima facie case of wrong being committed against P. The Whatsapp communications between Mr Sun and the impersonators, payment confirmations from P’s bank accounts and police reports have been exhibited.

12.  Secondly, I am satisfied that there is a real prospect that the requested information would enable P to trace P’s monies and identify and take action against any wrongdoer(s).

13.  Thirdly, I am satisfied that the discovery sought is specifically defined. The Draft Order now provides for disclosure of transaction details from 9 May 2025 and is therefore not unduly wide and restricted to documents necessary to allow P to preserve or discover what may well be its assets. I have also taken into account the neutral stance adopted by the Bank and that its comments have now been incorporated into the Draft Order.

14.  Having balanced the competing interest of the victim and the innocent party (the Bank) caught up in the wrongdoing, and mindful that the power to order disclosure should be exercised with great caution, I would now make an order in terms Draft Order.