WIRECARD NORTH AMERICA, INC v. WISDOM RICH INC. LTD

HCMP 897/2018

[2018] HKCFI 2583

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS 897 OF 2018

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D E C I S I O N

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1.  This is an application by the plaintiff by originating summons for return of the money that the plaintiff paid to the defendant under a scheme of fraud.

2.  I am satisfied that the plaintiff was the victim in this scheme of fraud and it had indeed paid the money that it now claims in these proceedings to the defendant under a bank account held by the defendant with the Standard Chartered Bank (Hong Kong) Limited.

3.  I am also satisfied that, firstly, the service has been duly made on the defendant by leaving the originating summons as well as the court papers at the registered office of the defendant, which is a Hong Kong incorporated company; and secondly that Standard Chartered Bank has been informed of these proceedings and has been copied with all the papers in these proceedings.

4.  In a letter dated 27 June 2018 from the bank to the plaintiff’s solicitors, the bank informed the plaintiff that the bank adopts a neutral stance in relation to the plaintiff’s application in these proceedings.

5.  The plaintiff applies for firstly a declaration that the fund that it had paid to the defendant, namely €987,700 (equivalent to US$1,192,351.44), together with all interests accrued thereon since 3 May 2018, remitted to the bank account no 54711691942 of the defendant held at the bank held by or standing to the credit of the defendant, is held on trust by the defendant for the plaintiff and that the funds are also held on trust by the bank for the plaintiff; secondly an order that the funds, together with all interests accrued thereon since 3 May 2018, be forthwith released and returned by Standard Chartered Bank to the plaintiff; and thirdly a further order that the defendant do pay to the plaintiff any balance of the funds, together with all interests accrued thereon since 3 May 2018, less the actual sum released and returned by the bank to the plaintiff, together with interest thereon at judgment rate from 3 May 2018 until full payment.

6.  Originally, I had some doubt as to whether I should make an order against the bank in the absence of the bank being joined as a party to the proceedings. However, I heard the submission of Mr Lam, solicitor for the plaintiff. He drew to my attention two judgments with facts similar to the present case, namely Valley Community Bank v Kaitong Investment Group Limited, HCMP 2800/2012, 23 January 2013, unreported, a judgment by Deputy High Court Judge Marlene Ng in chambers (open to public), in which her Ladyship made the same order as applied for in the present case, and also a District Court judgment by his Honour Judge KW Wong in chambers (open to public) in Northeast Metal Traders, Inc v Huiguan Electronic Industry Company Limited, 22 September 2017, unreported, in which the learned judge also made the same order as applied for in the present case. In both judgments, orders were made against the bank for return of money, without those banks joined as defendant.

7.  Moreover, I note that after the plaintiff’s solicitors have sent a copy of the notice of appointment for the hearing today to the bank, the bank replied with a formal letter to the plaintiff’s solicitors dated 5 November 2018 in no unclear terms that the bank adopts a neutral stance and will abide by any order that the Court may make on the plaintiff’s applications under the originating summons, and that the bank does not intend to appear at today’s hearing.

8.  Therefore, I am satisfied that, even if I order that the bank be joined as a defendant, the bank has already stated its position very clearly that it will not contest the proceedings and will abide by any order of the Court.

9.  In this light, I am minded to grant an order in terms of the originating summons, paragraph 1 and paragraph 2. I shall deal with the question of costs.

(Discussion with the plaintiff’s solicitor)

10.  I order in terms of paragraph 1 and 2 of the originating summons. I also order that costs of these proceedings, which are summarily assessed at HK$100,000 be paid by the defendant to the plaintiff.