TIAN TIAN v. CAO JI

DCCJ 511/2019

[2019] HKDC 197

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 511 OF 2019

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DECISION

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1.  By a summons filed on 29 January 2019 (“the summons”), the plaintiff seeks a Mareva injunction freezing the sum of AUD110,000.00 (“the sum”) or any part thereof in the defendant’s account with the Bank of China (Hong Kong) (“the account”). The plaintiff claims that she has a proprietary interest in this sum.

2.  On 1 February 2019, the plaintiff has obtained an order for substituted service.  Having read the evidence adduced by the plaintiff, I am satisfied that the plaintiff has served the documents concerning the application made by the summons on the defendant in accordance with the manner prescribed in that order.

The facts

3.  The plaintiff’s case is that she is a victim of a fraud.  Details are as follows.

4.  The plaintiff is a Chinese citizen and have been residing in Australia since 2012.  On 9 July 2018, the plaintiff received a call from a person who claimed to be a representative from the Chinese Consulate in Brisbane, Australia (“the call”).  The caller said he was contacting the plaintiff in relation to a legal document addressed to her and proceeded to transfer the call to another number (“the number”).  While waiting for the call to be transferred, the plaintiff performed a Google search on the number, and discovered that the number is from the Dongcheng District of Beijing, China.

5.  The call was then picked up by an individual who called himself as WANG Yanhao (王岩浩) (“Wang YH”).  Wang YH identified himself as an Interpol officer, and told the plaintiff that she was featured in a legal document (“the document”).  Wang YH summarised the contents of the document to the plaintiff.  In gist, Wang YH said that:-

(1)   On 2 April 2018, one LI Fang (李芳) (“Li”) used the plaintiff’s Chinese identity card to open an account with the Bank of China at its Dongcheng sub-branch;

(2)   Li then took advantage of her position within the government to illegally transfer money belonging to other individuals into that account;

(3)   When Li was subsequently arrested, the Chinese authorities found her to be in possession of a Bank of China card with the plaintiff’s name on it;

(4)   Li scammed a lot of individuals into giving her money; and

(5)   In the circumstances, Wang YH questioned why the plaintiff had not rendered assistance to police officers from the Dongcheng branch at the first instance.

6.  On the same date, ie 9 July 2018, the plaintiff received a Skype call from a person who claimed to be a prosecutor with the surname Zhang (“Zhang”).  Zhang told the plaintiff that time was of the essence, as the Chinese government wanted the case to be solved by the end of July 2018.

7.  Zhang then transferred the Skype call to a person who claimed himself to be a senior prosecutor and Zhang’s superior, and his name was WANG Xiangming (王向明) (“Wang XM”).

(1)   In addition to repeating statements similar to those made by Wang YH and Zhang, Wang XM showed the plaintiff through Skype some purported legal documents, the contents of which involved freezing certain assets.  The plaintiff also saw a copy of her Chinese identity card.  Prior to that, the plaintiff had never seen any legal documents in her life, and thus, the plaintiff believed everything Wang XM said.

(2)   Wang XM impressed on the plaintiff that the matter was strictly confidential.  Therefore, the plaintiff did not tell anyone else about it, not even her husband.

(3)   Wang XM told the plaintiff that, for the purpose of clearing her name, (a) Wang XM was going to ask for permission from his superior, ie the chief public prosecutor, to review all the plaintiff’s bank accounts; and (b) the plaintiff must carry out a series of money transfers to prove her innocence.

8.  Pursuant to Wang XM’s instructions, the plaintiff made 12 money transfers to nine distinct accounts between 10 July 2018 and 17 August 2018.  In sum, she transferred out a total of AUD 753,794.00.

9.  The aforesaid transfers include a transfer made by the plaintiff on 16 July 2018 (“the transfer”).  In that incident, the plaintiff transferred AUD 110,000.00 from her account with Commonwealth Bank of Australia to the account, which was held by the defendant.

10.  In mid-August 2018, after discussions with her husband, the plaintiff came to the conclusion that she had fallen to be a victim of a fraud.  The plaintiff then reported the matter to the Australian police.

11.  At the same time, the plaintiff and her husband also contacted all the banks involved to try to retrieve the sums transferred, but the banks were unable to comply as time had lapsed and the transfers had been performed.

12.  On 22 August 2018, the plaintiff reported the matter to the Hong Kong Police.

13.  On 28 October 2018, the Hong Kong Police informed the plaintiff of the following:-

(1)   The case had been put under investigation.

(2)   The account had been frozen by the Hong Kong Police Force in order to avoid the risk of dissipation of the fund.

(3)   The account maintained a balance of around USD 80,000.00, which the plaintiff might recover by commencing civil proceedings.

(4)   If there was no civil claim against the fund in the account, the Hong Kong Government would apply for confiscation of the same under the laws of Hong Kong. Upon the successful application by the Hong Kong Government, the sum contained in the account would be confiscated, and the plaintiff would not be able to recover it.

(5)   The plaintiff had to update the Hong Kong Police on the progress of any civil proceedings in relation to the account on or before 25 November 2018.

14.  On 23 November 2018, the plaintiff’s solicitors on behalf of the plaintiff contacted the Hong Kong Police and informed them that the plaintiff was in the process of commencing civil proceedings in relation to the account. The plaintiff’s solicitors have also made some enquiries with the Hong Kong Police.  On 25 November 2018, the Hong Kong Police replied and confirmed that the balance in the account was around USD 80,000.00.  On 5 December 2018, the Hong Kong Police told the plaintiff that the Hong Kong Police were still investigating the money transfers to the remaining eight accounts, and thus were only able to freeze the account.

Analysis

15.  In order to obtain a Mareva injunction, the plaintiff has to show^[1]:-

(1)   that it has a good arguable case on a substantive claim over which the court has jurisdiction;

(2)   there are assets within the jurisdiction;

(3)   the balance of convenience is in favour of granting the injunction; and

(4)   there is a real risk of dissipation of assets, or removal of assets from the jurisdiction, which would render the plaintiff’s judgment of no effect.

16.  Mr Andrew Lau, counsel for the plaintiff, submits that the plaintiff is asserting a proprietary interest in the sum and is claiming for a proprietary injunction.  In these circumstances, it would not be necessary for the plaintiff to show a real risk of dissipation of assets.  Mr Lau relies upon the decision by DHCJ Kent Yee in Zimmer Sweden AB v KPN Hong Kong Limited & Another[2]. Having read that decision and the authorities mentioned therein[3], I accept Mr Lau’s submissions.

17.  Based upon the evidence before me, I am satisfied that the plaintiff has shown a good arguable case against the defendant on the ground of unjust enrichment.  The defendant has been enriched by the transfer.  The defendant has provided no consideration in exchange for the sum transferred to the account. The transfer was procured by the activities mentioned in the above.  The Hong Kong Police’s investigation and intervention (ie freezing the account) show that these activities may be a calculated fraudulent scheme.  There is evidence in support of the unjust element.

18.  There is now about USD80,000.00 in the account, which is slightly more than the sum.  There are assets in Hong Kong which can be frozen by an injunction granted by this court.

19.  Since the plaintiff is asserting a proprietary interest in the sum and is claiming for a proprietary injunction, the plaintiff has no need to show a real risk of dissipation of assets.  If I were wrong on this and a real risk of dissipation of assets has to be shown, I am also satisfied that such a risk exists.  In my view, the circumstances leading to the transfer and the Hong Kong Police’s investigation are evidence showing that the sum now in the account may well be procured by a fraudulent scheme, and the defendant may have taken part in the scheme.  In these circumstances, if no injunction is granted, there would be a real risk that the judgment obtained by the plaintiff would go unsatisfied by reason of the disposal by the defendant of the sum of any part thereof in the account.

20.  In my view, there is a real risk of dissipation of assets if the injunction sought is not granted.  At the same time, there is no evidence showing that the defendant would suffer any irreparable damage if the injunction is granted.  The balance of convenience is in favour of granting the injunction.

21.  I would grant the injunction sought by the plaintiff.  The amount to be frozen by the injunction is AUD 110,000.00 or its equivalent.  The Plaintiff has offered the usual undertaking as to damages in support of the injunction.  The form of the order should be the one in PD11.2.

Disposition

22.  I allow the application made by the summons.  Costs of the summons, including costs of the application for an order for substituted service mentioned in paragraph 2 above, be the plaintiff’s costs in the cause, with a certificate for counsel, to be taxed if not agreed.

23.  I thank Mr Lau for the helpful assistance rendered to the court.