APOGEE CORPORATION TAIWAN BRANCH v. TUOBAN TRADING LTD

HCA 1493/2025

[2025] HKCFI 5971

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1493 OF 2025

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DECISION

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Introduction and Background Facts

1.  By Summons filed on 23 September 2025 (“the Summons”), the Plaintiff (“P”) seek against China CITIC Bank International Limited (“the Bank”), orders for disclosure in terms of the Summons pursuant to s.21 of the Evidence Ordinance, Cap.8 (“EO”).  An Affirmation has been filed in support of the Summons on behalf of P.

2.  According to P:

(1)     P is a wholly-owned subsidiary of XPEL Inc (“XPEL”), a company based in Texas, USA, that designs and sells protective films and coatings for vehicles;

(2)     An unknown fraudster pretended to be the Chief Executive Officer (“CEO”) of XPEL (“Mr Pape”) and directed the Managing Director of XPEL and P’s CEO (“Ms Pu”) to make wire transfers as purported deposits of funds for the acquisition of assets and told Ms Pu that his lawyers (“the Fake Lawyer”) would contact her regarding the acquisition;

(3)     The Fake Lawyer called Ms Pu on 19 June 2025 requesting P to make a good faith deposit of USD 977,780 on behalf of XPEL.  By email on 20 June 2025, the Fake Lawyer directed P to make a wire transfer of USD 307,780 to the Defendant’s bank account no. 716129350201 held with the Bank (“D’s Account”) which Ms Pu did as directed on 23 June 2025 from P’s bank account;

(4)     On 24 June 2025, the Fake Lawyer directed Ms Pu to make a wire transfer of USD 670,000 to the D’s Account which she did as directed on 25 June 2025;

(5)     It was only when the Vice President –Asia Pacific of XPEL (“Mr West”) questioned Ms Fu about the wire transfers did she find it suspicious that Mr Pape would bypass Mr West and instruct her directly.  On 5 July 2025, Mr West confirmed with the real Mr Pape that there was no plans to acquire the assets of any company and he never requested Ms Fu to transfer funds from P.  It was only then did Mr West and MsFu realized that P has been defrauded by the fraudsters.

3.  By the Summons, P seeks documents in the Bank’s possession, custody or power relating to the details and/or records in connection with the opening of D’s Account and all transaction involving movement of funds out of D’s Account from 23 June 2025 up to the date of the order.

4.  The Bank has been served the Summons and the supporting Affirmation on 26 September 2025.  By letter dated 21 October 2025, the Bank has indicated, save that it requires 14 working days from the service of the order to disclose the documents sought, it takes “no stance” to the Summons and will not be attending any hearing.  The Bank’s comments have now been incorporated into a Draft Order.

5.  Miss Wong, solicitors for P, appeared today and the Bank has not appeared.

Applicable principles

6.  The applicable principles governing an order under s. 21 of EO are well-established.  Although it has been said that such order is justified where the plaintiff seeks to trace funds which in equity belongs to him and of which there was strong evidence that he has been fraudulently deprived, there are 3 limits:

(1)     Firstly, 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)     Secondly, the documents sought to be disclosed must be identified with some specificity as would be expected of a subpoena; and

(3)     Thirdly, 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 but by way of invasion of privacy and requiring breach of obligations of confidence to others.

See CTO (HK) Ltd v Li Man Chiu & Others [2002] 2 HKLRD 875, §§12-13 per Deputy Judge Poon (as he then was); and Hwang Joon Sang v Golden Electronics Inc (No 2) [2021] 2 HKLRD 87 at §§8-9 per Coleman J.

Analysis and Order

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

8.  Firstly, in this action P has made a proprietary claim to the two sums transferred from P’s bank account to D’s Account.  There is strong evidence that P has been fraudulently deprived of these sums.  I am satisfied that that the information sought are germane to the issue of fund flow and whereabouts of its funds, and there is a real prospect the disclosure of such information will lead to the location or preservation of assets to which P has made a proprietary claim.

9.  Secondly, I am satisfied that the discovery sought is specifically defined and not unduly wide.  The period of disclosure is limited to the period from when P’s monies were transferred to D’s Account. I have also taken into account the stance adopted by the Bank who has not suggested any difficulty in complying with the orders sought save for the time to comply which has been now reflected in the Draft Order.

10.  Thirdly, 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 make an order in terms of the Draft Order (as amended by me).