CHEUNG KA WA v. WU CHUNG HSIEH AND OTHERS

DCCJ 106/2022

[2023] HKDC 1342

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 106 OF 2022

————————

————————

————————

JUDGMENT

————————

1.  This is an application for default judgment under Order 19, rule 7 of the Rules of the District Court, Cap 336H (“RDC”).

2.  The cause of action is fraud.

3.  What is sought are proprietary declarations and also monetary relief.

4.  It is clear that the court has power to grant such declarations: see Minebea Cambodia Co Ltd v Zhao Jin Fang [2022] HKCFI 3325: -

“28. The principles applicable to an application under O.19 r.7 have been discussed in several cases concerning alleged email frauds. The power to grant judgment under the provision is discretionary. The court is required to scrutinise whether the matters pleaded in the Statement of Claim entitle the plaintiff to the judgment sought. The court’s decision is made on the basis of the pleaded facts, rather than on evidence…

29. As to declaratory relief, it is not the normal practice of the court to grant a declaration without going to trial. This is, however, only a rule of practice, rather than a rule of law, and gives way to the paramount duty of the court to do the fullest justice to the plaintiff to which he is entitled. In a number of cases involving email fraud, declaratory relief has been granted on the basis that there is a genuine need for such relief to secure the plaintiff’s proprietary as opposed to merely personal claim, particularly given that the defendant may have other creditors…”

5.  Having scrutinized the Statement of Claim, this appears to be a case where the relief sought ought to be granted. There is a clear pleaded case of fraud and unjust enrichment, and only a declaratory, proprietary relief would assist the plaintiff fully.

6.  The pre-requisites, ie, service of the Writ, including out of jurisdiction, had been satisfied.

7.  Further, as confirmed by P’s legal representatives, no Acknowledgment of Service had been received. As such, based on RDC Order 65, rule 9, it is not necessary to serve the Summons for the present default judgment application.

8.  I therefore grant judgment as per the Schedule to the Summons, with the following modifications: -

(a)  As against the 1^st Defendant:

(i)  §§4, 5, 7, 8 and 9 are removed.

(ii)  “Plaintiff’s BOCHK Account” is replaced by “the account kept by the Plaintiff with Bank of China (Hong Kong) Limited with account number 891-1-034-5016”.

(iii)  “Bank Account of D1” is replaced by “the account kept by D1 with Citibank (Hong Kong) Limited with account number 25039092830455”.

(b)  As against the 2^nd Defendant:

(i)  §§4, 5, 7, 8 and 9 are removed.

(ii)  “Plaintiff’s BOCHK Account” is replaced by “the account kept by the Plaintiff with Bank of China (Hong Kong) Limited with account number 891-1-034-5016”.

(iii)  “Bank Account of D2” is replaced by “the account kept by D2 with Nanyang Commercial Bank Limited with account number 04347411029254”.

(c)  As against the 3^rd Defendant:

(i)  §§3, 5, 6 and 7 are removed.

(ii)  “Lost Sum” is replaced by “D1 Trust Sum and the D2 Trust Sum”.

(iii)  “Bank Account of D1” is replaced by “the account kept by D1 with Citibank (Hong Kong) Limited with account number 25039092830455”.

(iv)  “Bank Account of D2” is replaced by “the account kept by D2 with Nanyang Commercial Bank Limited with account number 04347411029254”.

(v)  “Bank Account of D3” is replaced by “the account kept by D3 with Hongkong and Shanghai Banking Corporation with account number 728344599888”.

(d)  As against the 6^th Defendant:

(i)  §§3, 5, 6 and 7 are removed.

(ii)  “Lost Sum” is replaced by “D1 Trust Sum and the D2 Trust Sum”.

(iii)  “Bank Account of D1” is replaced by “the account kept by D1 with Citibank (Hong Kong) Limited with account number 25039092830455”.

(iv)  “Bank Account of D6” is replaced by “the account kept by D6 with Bank of China (Hong Kong) Limited with account number 011269520085528”.

(e)  As against the 7^th Defendant:

(i)  §§3, 5, 6 and 7 are removed.

(ii)  “Lost Sum” is replaced by “D1 Trust Sum and the D2 Trust Sum”.

(iii)  “Bank Account of D1” is replaced by “the account kept by D1 with Citibank (Hong Kong) Limited with account number 25039092830455”.

(iv)  “Bank Account of D2” is replaced by “the account kept by D2 with Nanyang Commercial Bank Limited with account number 04347411029254”

(v)  “Bank Account of D7” is replaced by “the account kept by D7 with Bank of China (Hong Kong) Limited with account number 01278720074271”.

(f)  A further section be added at the end: -

“Against all Defendants

1.  Liberty to Apply.

2.  Costs of this Action and this application be paid forthwith by the 1^st, 2^nd, 3^rd, 6^th and 7^th Defendants to the Plaintiff, summarily assessed at HK$130,000.”