DING YOU v. CITIBANK (HONG KONG) LTD

DCMP 5361/2024

[2024] HKDC 2025

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 5361 OF 2024

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BETWEEN

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DECISION

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Introduction and Background Facts

1.  I have before me an application by the Plaintiff (“P”) by Originating Summons dated 19 September 2024 (“the OS”) against Citibank (Hong Kong) Limited (“the Bank”) for disclosure of the documents set out in the OS under the court’s inherent jurisdiction to grant Norwich Pharmacal relief.

2.  P, a resident in Mainland China and Hong Kong, is an insurance broker.

3.  In about May 2024, Wang, a friend of P, indicated to P that he wished to purchase two insurance policies from him. As the two insurance policies were denominated in Hong Kong dollars and Wang was resident in Mainland China, he asked P to lend him some Hong Kong dollars and he would return the equivalent in RMB. From 5 May 2024 to 15 May 2024, Wang transferred a total sum of RMB1,300,000 to P.

4.  On 19 May 2024, P received a Whatsapp message from a person who impersonated Wang and asked P for HK$2,000,000 urgently and for the transfer of that sum to his friend Xiao’s account maintained with the Bank (“the Account”). On the same day, by way of three transfers by him from his bank accounts, P transferred a total of HK$800,000 to the Account.

5.  P also asked his friend Wu to lend him some money but later when someone hacked into his WhatsApp and sent various messages to Wu did he become suspicious and called Wang to verify the messages sent by him. P then realized that he was a victim of a fraud and reported the matter to the Hong Kong police on 19 May 2024.

6.  Subsequently, the police informed P that the funds he transferred to the Account had been frozen but further information requested from P’s solicitor has not been forthcoming.

7.  P now seeks an order for disclosure of: (a) the account opening documents of the Account; (b) all address proofs provided by Xiao; (c) banks statements in respect of the Account since 19 May 2024 until the date of the order; (d) the current balance of the Account; and (e) transaction details relating to the onward transfers from the Account since 19 May 2024 to the date of the order.

8.  The Bank has been served the OS and has indicated that subject to the condition that P will pay the Bank’s costs and expenses on an indemnity basis, it adopts a neutral stance with regard to P’s application and seeks to be excused from attending today’s hearing. The Bank has not attended today’s hearing.

9.  Mr Chu, counsel, appears on behalf of P.

Applicable principles

10.  The applicable principles for Norwich Pharmacal relief are well-settled. It is not a usual order and will not be lightly granted in the absence of powerful factors:

(1) It is made against an innocent party whose only involvement is to become mixed up in the tortious or wrongful activities of others;

(2) The wrongdoing exists only on the part of a person or persons against whom no relief may be sought at the stage of the application and against whom there is probably insufficient evidence to found an action;

(3) There will usually be a legal relationship between the innocent person against whom a discovery order is sought and the alleged wrongdoer, and the relationship may involve strict duties to be observed on the innocent party’s part. Any discovery to be made will involve a breach of confidentiality and may expose the innocent party to civil liability and possibly even criminal liability; and

(4) The court must accordingly balance the competing interests of the victim of the alleged wrongdoing and an innocent party caught up in the wrongdoing.

See A Co v B Co [2002] 3 HKLRD 111 at §12 per Ma J (as he then was).

11.  In A Co v B Co at §13, the main requirements for Norwich Pharmacal relief were set out:

(1) There must be cogent and compelling evidence to demonstrate that serious tortious or wrongful activities have taken place (where fraud or similar serious allegations are made, the degree of proof must correspondingly be high);

(2) It must be clearly demonstrated that the order will or will very likely reap substantial and worthwhile benefits for the plaintiff, and where a tracing claim is likely to be made there must be a serious possibility that the discovery sought will either allow the plaintiff to preserve what may well be his assets or realistically lead to the discovery of such assets; and

(3) The discovery sought must not be unduly wide, so an order must be specific and also restricted to those documents or those classes of documents that are necessary to enable the plaintiff to preserve or discover assets.

Analysis and Order

12.  Applying the above legal principles to the facts of the present case, I am satisfied that a Norwich Pharmacal order should be granted.

13.  Firstly, from bank transfer records, the reports to and correspondence with the police and the affirmations filed by P, there is before me cogent and compelling evidence that P has been defrauded to transfer his monies into the Account.

14.  Secondly, the information sought by P is highly germane to the identity and contact details of the holder of the Account and the issue of fundflow. Disclosure of such information would likely reap substantial and worthwhile benefit to enable P to commence proceedings against Xiao and/or other wrongdoer(s) to recover or preserve his monies as well as enable P to serve court documents on the identified wrongdoer(s).

15.  Thirdly, I am satisfied that the discovery sought is specifically defined and not unduly wide. I have also taken into account the neutral stance adopted by the Bank who has not suggested any difficulty in complying with the order sought.

16.  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 submitted as amended by me.