FORTIS BANK SA/NV v. CHARLES ALBERT

HCA 185/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 185 OF 2008

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D E C I S I O N

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1.  This is the return date of the Mareva injunction granted by Reyes J and continued by Deputy Judge Longley, and the Plaintiff also seeks to effect substituted service outside jurisdiction of the writ as well as the injunction order.

2.  The Plaintiff is a Belgium bank which has an office in Hong Kong.  The Plaintiff alleged theft and conversion by the Defendant. 

3.  The Plaintiff is a shareholder of the ICBC Asia Limited, a bank in Hong Kong.  In June 2007, ICBC was to pay a dividend of about HK46 million to the Plaintiff.  The cheque was issued in Hong Kong but the Plaintiff never received it.  In fact, the cheque for the same amount was deposited in an account with HSBC in Hong Kong under the name of the Defendant.  The account was opened with an address in Kowloon under the name of the Defendant as identified by a Belgian passport.  Most of the money has been withdrawn from the account with about 25% remaining. 

4.  Police investigation revealed that the Belgian passport is genuine, the address in Kowloon is not valid, and the cheque was tampered with in that the Plaintiff’s name as original payee was erased and the Defendant’s name was forged upon it.

5.  A Mareva injunction freezing the Defendant’s assets within jurisdiction up to the value of the cheque was obtained and served on HSBC, and the money remaining in the account had been frozen. 

6.  The Plaintiff has issued a writ for conversion of the money but it has not yet been possible to serve the writ and the injunction order.  As said, police investigation revealed that the account opening address in Kowloon was no longer valid.  Searches in Belgium found two addresses relating to a person with the same name of the Defendant.  One was an address given when an account was opened with the Plaintiff’s head office in Belgium, but the account was closed in 1997 for suspected fraudulent activities.  Another address was found under that name with another bank, Record Bank in Belgium, but the account was also closed.  There is no more information as to the whereabout of the Defendant.

7.  The Plaintiff is seeking service outside jurisdiction under Order 11, rule 4 of the Rules of the High Court.  The cause of action was tort under Order 11 rule 1(1)(f). 

8.  Miss Fan, for the Plaintiff, submitted that Hong Kong is the natural forum because the offence was committed in Hong Kong, and all the witnesses are in Hong Kong. 

9.  Substitute service is also applied for under Order 65, rule 4.  It is submitted that the Defendant is on the run, the addresses are no longer valid, and the suggested mode by advertisement in the SCMP in Hong Kong and two newspapers, one in French and one in the Dutch language in Belgium, would likely be able to bring to the attention of the Defendant the proceedings and the injunction order. 

10.  The Plaintiff has requested exemption of personal service on the addresses found because of the likely invalidity, and personal service under the Hague Convention would be time consuming and costly. 

11.  Based on the alleged theft and the police evidence on forgery, it is reasonable to think that the Defendant would be evading police arrest if not also the civil proceedings.  I am satisfied that the measures suggested are the most practical in the circumstances.  Hence, I shall order substituted service outside jurisdiction by advertisements only, and the continuation of the injunction until trial, with liberty to apply for discharge.

12.  Costs of the proceedings so far have been reserved.  I order those costs as well as today’s costs be in the cause.