CHAN CHING MAN v. MOX BANK LTD

DCMP 6552/2024

[2025] HKDC 1302

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 6552 OF 2024

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JUDGMENT

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Introduction

1.  This is the hearing of the Plaintiff’s Originating Summons dated 21 November 2024 seeking the following orders-

(a)  An order requiring the Defendant do disclose to the Plaintiff’s solicitors all documents or records that are in possession, custody or power of the Defendant containing all particulars of the names and addresses including, but not limited to such address or addresses within or outside Hong Kong SAR, as so registered to the bank account No 74935618079 under account beneficiary ZHANG CHENFAN (the “Account Holder”) (“Zhang Account”);

(b)  The Plaintiff do have leave to use the documents and records obtained under paragraph 1 hereinabove for the purpose of commencing and pursuing legal proceedings in Hong Kong against the Account Holder, the said ZHANG CHENFAN; and

(c)  Save and except the purposes specified hereinabove, the Plaintiff shall not use the information disclosed by the Defendant for any other purpose.

The Plaintiff’s Case

2.  The present application is supported by the Affirmation of Fung Kam Tong dated 21 November 2024 and the Affirmation of the Plaintiff dated 19 June 2025 (filed on 24 June 2025) setting out the circumstances under which the Plaintiff fell victim to a telephone fraud in June 2024.

3.  The factual background leading to this dispute has also been set out in a related application in Chan Ching Man v Livi Bank Limited [2025] HKDC 1097 §§4-12, which I have read.

4.  In essence, by reason of the fraud practised on the Plaintiff, she transferred (1) a sum of HK$289,351 (“1^st Sum”) to Livi Bank Limited under Account No 756006910359 (the account holder being Lo John Jr) (“Livi Account”) and (2) another sum of HK$311,121 to Nanyang Commercial Bank Limited under Account No 490101380758 (the account holder being Zhou Qingshi).

5.  The Plaintiff reported the matter to the police on 11 June 2024. In early August 2024, she was informed by the police that the proceeds of crime in connection with the 1^st Sum was found in an account with “significant amount withheld”.

6.  Further investigation shows that the 1^st Sum was later transferred to another bank account. By a letter from the Plaintiff’s solicitors dated 20 August 2024, the Plaintiff requested the police to provide her with the relevant particulars of the recipient account, ie the name of the Bank, account number and account holder together with his/her/its address.

7.  On 16 September 2024, the police revealed that the recipient account was the Zhang Account. However, the information disclosed does not include the address of the Account Holder, without which the Plaintiff is unable to institute legal proceedings to recover the loss of the 1^st Sum. This has led to the taking out of the present Originating Summons. The Plaintiff seeks the discovery order against the Defendant as an innocent third party under the Norwich Pharmacal principles.

8.  In letters from the Defendant to the Plaintiff’s solicitors dated 27 November 2024 and 13 December 2024, the Defendant expressed its neutral position in respect of this application. The Defendant asked its attendance at the hearing of the Originating Summons be excused. In respect of costs, the Defendant asked that the Plaintiff should pay the Defendant’s costs and expenses incurred in complying with the disclosure request on an indemnity basis.

9.  The Originating Summons was initially fixed on 7 January 2025 before Deputy District Judge Alfred Cheng. The learned deputy judge requested further evidence from the Plaintiff and directed the hearing to be re-fixed. Having enquired with the Plaintiff’s solicitor today, I learn that the learned deputy judge considered that relevant affidavit evidence should come from the Plaintiff herself, rather than from her solicitor, where the matter complained of is one of fraud.

10.  The learned deputy judge also directed that the Defendant’s attendance at the refixed hearing be excused.

11.  The further new evidence is now contained in the Affirmation of the Plaintiff by which she has also exhibited and referred to the relevant bank documents in order to prove the fund flow of the 1^st Sum from her bank account to, eventually, the Zhang Account. From these documents, it can be seen that the Plaintiff transferred the 1^st Sum to the Livi Account on 11 June 2024. On the same day, the 1^st Sum was transferred to the Zhang Account by way of a “FPS Transfer”.

12.  In light of the direction given on 7 January 2025, the Defendant’s attendance is excused and is thus absent today. I proceed in its absence.

Discussion

13.  The relevant legal principles governing a Norwich Pharmacal application are trite and well-established.

14.  The three main requirements include:

(a)  there must be cogent and compelling evidence to demonstrate that serious tortious or wrongful activities have taken place (where allegations of fraud or something similar requires the degree of proof to be correspondingly high);

(b)  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 made 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

(c)  the discovery sought must not be unduly wide, so any 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.

(See A1 & Anor v R1 & Anors [2021] HKCFI 650 per the Hon Coleman J §56)

15.  In the present case, having considered the affidavit evidence adduced by the Plaintiff, including the Plaintiff’s correspondence with the police and the relevant bank documents produced in the Plaintiff’s Affirmation, I am satisfied that some serious tortious or wrongful activities have taken place in which the Plaintiff was the victim. The Defendant, while not a wrongdoer, has been mixed up in the wrongdoings of the fraudster(s).

16.  The orders sought to be granted will or will very likely reap substantial and worthwhile benefits for the Plaintiff in that the information will likely aid the commencement of the recovery action to be undertaken by the Plaintiff against the Account Holder.

17.  I also note that in the orders sought, the Plaintiff is only asking for documents or records “containing all particulars of the names and addresses registered to the Zhang Account”. That is quite restrictive and thus not unduly wide, but is necessary to enable the Plaintiff to institute legal proceedings to recover the 1^st Sum from the Account Holder.

18.  At the hearing, a draft order was handed up to this Court containing further description of the documents sought to be disclosed. I find that some of those documents described therein fall outside the ambit of the Originating Summons, which I shall not grant. The Plaintiff did not insist upon them.

Conclusion

19.  As to the time for compliance, I note the Defendant’s stated position is that it would require at least 14 days to comply.  The Plaintiff has also agreed to pay the Defendant’s costs and expenses incurred in this application and in complying with the disclosure request on an indemnity basis.

20.  In the premises, I grant an order as follows:-

(a)  An order requiring the Defendant do, within 28 days upon the service of this order (or by such other time and the date as may be agreed in writing between the Plaintiff and the Defendant), disclose to the Plaintiff’s solicitors all documents or records that are in possession, custody or power of the Defendant containing all particulars of the names and addresses including, but not limited to such address or addresses within or outside Hong Kong SAR, as so registered to the bank account No 74935618079 under account beneficiary ZHANG CHENFAN (the “Account Holder”). Such documents shall include, but not limited to:-

i.   The account opening documents of the said account; and

ii.  All addresses proofs including, but not limited to such address or addresses within Hong Kong SAR, as provided by the Account Holder.

(b)  The Plaintiff do have leave to use the documents and records obtained under paragraph 1 hereinabove for the purpose of commencing and pursuing legal proceedings in Hong Kong against the Account Holder, the said ZHANG CHENFAN;

(c)  Save and except the purposes specified hereinabove, the Plaintiff shall not use the information disclosed by the Defendant for any other purpose; and

(d)  The Plaintiff do pay the Defendant costs and expenses incurred in this application (inclusive of all costs reserved) and in complying with this order on an indemnity basis (at the standard rate stipulated by the Defendant).