BPI TRADING (SG) PTE LTD v. BAIG MOHAMMED ADIL

HCA 1726/2025

[2026] HKCFI 2448

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1726 OF 2025

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D E C I S I O N

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1.  There are two applications made by the Plaintiff. The first is to continue the ex parte Mareva injunction granted on 12 September 2025, and amended and continued on 19 September 2025. The second is to apply for Norwich Pharmacal relief and a Banker’s Book order against HSBC. Both applications are opposed by the Defendant.

2.  I start by considering whether the injunction should be continued.

A.  CONTINUATION OF MAREVA INJUNCTION

3.  For the grant of a domestic Mareva injunction, it is common ground that the plaintiff must show that (1) he has a good arguable case on a substantive claim over which the court has jurisdiction; (2) there are assets within the jurisdiction; (3) the balance of convenience in favour of grant; (4) there is a real risk of dissipation of assets, or removal of assets from the jurisdiction, which would render the plaintiff’s judgment of no effect.

A1.  Good Arguable Case

4.  In order to show a “good arguable case” for the purpose of a Mareva injunction, the plaintiff must show that his case is one that is more than barely capable of serious argument, and yet not necessarily one which the judge believes to have a better than 50% chance of success; he need not go so far as to persuade the judge that he is likely to win: Grupo Pacifica Incorporada v Worldwide Marine Product Ltd (unreported, CACV 217/2015, 28 January 2016) [5.1] (Cheung JA).

5.  According to the Plaintiff, its business involves facilitating physical trades and conducting corresponding hedges in derivatives markets to earn profit from the difference between selling and buying prices without taking any positions in the market based on the underlying price of the commodity. The Plaintiff contends that the Defendant and the former management of the Plaintiff (namely Leow Jiah Soon (“Jason”), Li Shuyi Lindy and Wong Sze Min Olivia (“Olivia”)) (together the “Plaintiff’s Former Management”)) colluded together to siphon money out of the Plaintiff. The Plaintiff’s case is that the Plaintiff’s Former Management, the Defendant and his company, ATA Solutions Ltd (“ATA”), caused ATA or the Plaintiff to act as each other’s “broker” for “contracts for difference” trading, such that where the Plaintiff would lose money as a client or where ATA would profit as a client, money would be transferred by the Plaintiff to ATA either to settle the Plaintiff’s losses or to pay out ATA’s profits. The Plaintiff says that ATA was a sham vehicle designed to induce the Plaintiff to part with money pursuant to a profit‑sharing arrangement between the Plaintiff’s Former Management and the Defendant.

6.  The Plaintiff has pleaded two methods by which money was siphoned from the Plaintiff to ATA.

(1)  The first was where the Defendant provided trading tips to the Plaintiff’s Former Management, or where the Defendant and the Plaintiff’s Former Management wanted to bet on a certain trade. In such a case, the Plaintiff’s Former Management would cause the Plaintiff to execute such trades in its accounts with legitimate brokers, which were expected to be profitable. At the same time, the Plaintiff’s Former Management would put up opposite trades of fewer lots with ATA as the Plaintiff’s broker, which were expected to be loss-making. If the Defendant or the Plaintiff’s Former Management turned out to be correct, most of the profits made by the Plaintiff with its legitimate brokers would be paid to ATA to cover the losses from such trades. The Plaintiff has identified 6 trades in 2022 and 2023 which utilised this method.

(2)  The second was to enable ATA to trade using the Plaintiff’s own margin and credit line with legitimate brokers. ATA was never required to deposit any initial or variation margin, and was never charged any overnight swap fees for the trades. This would allow ATA to only profit without bearing any risk of potential losses from the trades. The Plaintiff has identified 3 trades which used this method.

7.  Two members of the Plaintiff’s Former Management have also admitted to the Plaintiff, amongst other things, that (1) the Defendant would offer trading tips to Jason and/or Olivia, essentially to copy the trades of the Defendant’s source named “Legend”, (2) Jason and/or Olivia would execute proprietary trades on behalf of the Defendant and the Plaintiff in using the Plaintiff’s corporate account maintained with legitimate brokers, (3) one-third of the profit earned by such proprietary trades under the Plaintiff’s name would be paid to the Defendant via ATA, and the Defendant or ATA did not pay for the trading losses that arose from such trades, (4) Olivia would forge monthly broker statements purportedly issued by ATA and forward them to the Plaintiff’s group finance department, (5) payments to ATA would be disguised as margin payments for trades purportedly executed by the Plaintiff with ATA and (6) the Plaintiff’s group finance department would then process the forged broker statements and arrange payment to ATA.

8.  The Plaintiff has further relied on a series of other circumstantial matters set out in paragraphs 24.1 to 24.10 of its Statement of Claim and paragraphs 5.3 and 5.5 of its Reply to draw inferences to support its case. It is unnecessary to recite them in this Decision.

9.  In its skeleton argument, the Plaintiff relies on 4 causes of action against the Defendant, namely unlawful means conspiracy, dishonest assistance, deceit and unjust enrichment. On the basis of the materials before the court, I am satisfied that the Plaintiff has demonstrated a good arguable case on the substantive claim in each of the 4 causes of action against the Defendant.

(1)  In relation to the relevant principles on unlawful means conspiracy, dishonest assistance and unjust enrichment, I refer to the summary recently set out in China Medical Technologies Inc (in liq) v Wu Xiandong [2026] HKCFI 276 at [338]-[341], [358]-[361] & [490]-[492].

(2)  For the claim in unlawful means conspiracy, there is a good arguable case that the Plaintiff’s allegation of the profit‑sharing arrangement between the Defendant and the Plaintiff’s Former Management, and the evidence adduced by the Plaintiff in support, are sufficient to constitute an arrangement or agreement between two or more people with the intention to injure the Plaintiff. The carrying out of the alleged profit-sharing arrangement would amount to either fraud/deceit or a breach of fiduciary duty on the part of the Plaintiff’s Former Management constituting unlawful acts, resulting in damage caused to the Plaintiff.

(3)  For the claim in dishonest assistance, there is a good arguable case that (a) the Defendant had assisted the Plaintiff’s Former Management in breaching their fiduciary duties to the Plaintiff and (b) the Defendant was dishonest when providing such assistance with actual knowledge that ATA was set up as a sham vehicle and (c) the Defendant’s assistance had resulted in the Plaintiff’s loss.

(4)  The legal principles on deceit were summarised by Cheung JA in Haifa International Finance Co Ltd v Concord Strategic Investments Ltd [2009] 4 HKLRD 29 at [15]. For the claim in deceit, there is a good arguable case that (a) the Defendant had made false representations to the Plaintiff that ATA was a legitimate broker when he knew that ATA was set up to receive a share of the profit under the alleged profit-sharing arrangement, and (b) the Plaintiff had acted upon the false representations by transferring money to ATA at the material times.

(5)  For the claim in unjust enrichment, there is a good arguable case that (a) the Defendant was the sole shareholder and director of ATA and was enriched through ATA’s receipt of money at the Plaintiff’s expense, and (b) the Plaintiff transferred the money to ATA under a mistake of fact or for want of authority.

10.  I note that the Defendant has not made any submission to address why the Plaintiff has not established a good arguable case on each of the 4 causes of action relied upon by the Plaintiff. Instead, the Defendant’s general submission is that the Plaintiff does not have a good arguable case and makes the following specific submissions.

11.  First, the Defendant contends that he was not a “fake” broker by saying that the Plaintiff was aware that ATA was a “one-man band”, and that the Plaintiff had extensive knowledge and relationship with the Defendant and ATA. Taking them to the highest, I do not consider that the matters set out in paragraph 48 of the Defendant’s written submissions are sufficient to conclusively establish that the Defendant was not a “fake” broker. The fact that the Plaintiff had previous knowledge about the Defendant and ATA does not undermine the good arguable case of the Plaintiff.

12.  Second, the Defendant submits that ATA was in a similar position to the other bona fide third parties. This submission fails to grapple with the various unusual features identified by the Plaintiff. One example is the fact that the Plaintiff’s Former Management would put up opposite trades of fewer lots with ATA as the Plaintiff’s broker and that for certain specified trades identified in the Plaintiff’s reply affirmation, Jason would seek approval from the Defendant, or the Defendant would directly instruct Olivia to close off trades, which caused the Plaintiff to crystallise its losses with ATA. The Defendant’s submission is insufficient to negate the Plaintiff’s good arguable case.

13.  Third, the Defendant contends that the Plaintiff solely relies on the unreliable evidence of Jason and Olivia, and that the two individuals have wrongly implicated him who he claims to be an innocent third party. It is incorrect that the Plaintiff’s case is solely premised on the admissions of Jason and Olivia. As mentioned earlier, the Plaintiff has also relied on a host of other circumstantial matters as bases to draw inferences to support its case. For example, the Plaintiff has referred to certain uncommercial and non arm’s length dealings between the Defendant/ATA and the Plaintiff’s Former Management, such as the agreement to remove swap charges for ATA and the giving of access to Olivia to ATA’s back office on the Fortex platform. Further, ATA did not seem to carry out any real operations for any clients other than the Plaintiff, and there is no evidence to suggest that ATA has any liquidity to pay out its client’s profits. Again, I do not consider this submission to be sufficient to undermine the Plaintiff’s good arguable case.

14.  Fourth, the Defendant submits that the Plaintiff has failed to make material non-disclosures, including the Plaintiff’s board resolution to authorise the opening of account for trade activity with ATA, how the Plaintiff’s Former Management came to deal with the Defendant, the existence of 3 particular types of trades, the Plaintiff’s customer disclosure form, and some other information identified in paragraph 58 of the Defendant’s written submission. The Plaintiff objects to the Defendant’s failure to give adequate prior notice of the advancement of an allegation of material non-disclosure, citing Gee on Commercial Injunctions (7^th ed, 2022) 9-032. The allegation of material non-disclosures and the identification of the alleged non-disclosures were not made in the Defendant’s affirmation, and were only advanced for the first time in the skeleton argument of Defendant’s counsel filed shortly before the hearing. I do not think this is fair given that the Plaintiff did not have any opportunity to deal with the allegation in its reply affirmation.

15.  In any event, I have considered the matters that are said to constitute material non-disclosures, but do not believe that they are sufficient to negate the Plaintiff’s good arguable case. Most of them relate to the Defendant’s contention that he was a bona fide trader. I note that in the affirmation that was placed before the ex parte Judge, the deponent did say that “Adil may claim that the transactions are legitimate, or he may try to deny his knowledge of or participation in the fraudulent scheme”. The various “know your clients” documents were also referred to and exhibited in the affirmation at the ex parte stage. The Plaintiff also disclosed the fact that the Defendant was a salesperson at ATFX Global. I do not believe the Plaintiff has been guilty of any material non-disclosures.

16.  Finally, the Defendant submits that the matters mentioned in the Plaintiff’s reply affirmation are insufficient to show a good arguable case. Given that a “good arguable case” for the purpose of a Mareva injunction involves the plaintiff showing that his case is one that is more than barely capable of serious argument, I am satisfied that all the matters relied upon by the Plaintiff as summarised earlier are sufficient to demonstrate that it has a good arguable case against the Defendant.

A2.  Assets within Jurisdiction

17.  In an affirmation filed pursuant to the ancillary disclosure order, the Defendant claimed that he had assets worth approximately HK$1.7 million in Hong Kong. The Defendant clearly has assets within the jurisdiction.

A3.  Real Risk of Dissipation Assets

18.  The question of whether or not there is solid basis for concluding that there is a real risk of dissipation involves an exercise of an evaluative and predictive judgment. Usually, it is a matter of drawing proper inference from a holistic consideration of all the circumstantial materials that are indicative of risk. See Convoy Collateral Ltd v Cho Kwai Chee [2020] 6 HKC 81 at [40] (Lam VP).

19.  Where the underlying claim advanced against a defendant involves dishonest or fraudulent conduct or other serious wrongdoings, it is necessary to examine whether the conduct or wrongdoing in question is itself indicative of, or relevant to, the risk of dissipation. See China Medical Technologies, Inc (in liq) v Samson Tsang Tak Yung [2022] HKCA 41 at [38] (Chow JA); Convoy (above) at [46] (Lam VP).

20.  As mentioned earlier, I have come to the view that the Plaintiff has demonstrated a good arguable case of the unauthorised profit‑sharing arrangement and the Defendant’s knowledge of ATA being a sham vehicle. In these circumstances, I consider that the wrongdoing in question is itself indicative of the risk of dissipation. Further, the Plaintiff’s claims against the Defendant involve serious misconduct and reflect adversely on his integrity, which would point towards an inference of a risk of dissipation of assets: Convoy (above) at [53] (Lam VP).

21.  The Defendant submits that there is no likelihood of dissipation of assets because his assets were frozen when the ex parte injunction was granted on 12 September 2025, and that he has been in full time employment. These submissions are wholly without merit. It is illogical for the Defendant to argue that the freezing of his assets by the ex parte injunction would provide a basis to contend that there is no real risk of dissipation of his assets. Further, the fact that the Defendant has been in full time employment does not indicate whether or not there is a risk of dissipation of his assets.

A4.  Balance of Convenience

22.  The Defendant submits that the existence of a Mareva injunction greatly inconveniences his daily living. However, given that I have already come to a view that the Plaintiff has established a good arguable case against the Defendant and that there is solid basis for concluding that there is a real risk of dissipation of the Defendant’s assets, I consider that the balance of convenience lies in favour of granting the injunction.

23.  For all of these reasons, it seems to me that the injunction order should be continued.

B.  APPLICATION FOR NORWICH PHARMACAL RELIEF AND BANKER’S BOOKS ORDER

24.  The Plaintiff has further made an application for disclosure of information and documents in relation to the Defendant’s bank accounts maintained with HSBC in Hong Kong. As mentioned earlier, the application is made for Norwich Pharmacal relief and a banker’s book order under s.21 of the Evidence Ordinance (Cap 8).

25.  The principles are trite and it is unnecessary to repeat them. On the basis of the materials before the court, I am satisfied that Norwich Pharmacal relief sought by the Plaintiff should be granted. In particular, I am of the view that:

(1)  there is cogent and compelling evidence that serious tortious and wrongful activities have taken place;

(2)  the order will very likely reap substantial and worthwhile benefits for the Plaintiff, including providing the Plaintiff with knowledge about whether the Defendant has received money transferred from the Plaintiff to ATA; and

(3)  the order sought is not unduly wide and is confined to matters directly relevant to the Plaintiff’s claim against the Defendant.

26.  I further note that HSBC’s comments have been incorporated into the Plaintiff’s draft order and that HSBC has confirmed that it has no further comments.

27.  The Defendant submits that the last payment made by the Plaintiff to ATA was made over 2 years ago and that the Plaintiff cannot satisfy the requirement that the disclosure order will very likely reap substantial and worthwhile benefits for the Plaintiff. The mere lapse of time between the last payment and the present application cannot definitively show that the proposed disclosure order cannot confer substantial and worthwhile benefits for the Plaintiff. I am therefore unable to accept the Defendant’s submission.

C.  DISPOSITION

28.  The orders that I make are as follows.

(1)  The injunction order granted on 12 September 2025, and amended and continued on 19 September 2025, be further continued until trial or further order of the court.

(2)  An order in terms of the draft order in relation to the Plaintiff’s summons for disclosure is made, subject to some changes which I will indicate to counsel.

29.  I will now discuss with the Plaintiff’s counsel on the precise terms of the draft order for disclosure, and will also hear the parties on costs in relation to the Plaintiff’s summons for the continuation of the injunction order.

[Discussion on draft order and costs]

30.  I make an order in terms of the draft order as amended.

31.  I also order that the costs of and occasioned by the Plaintiff’s summons dated 12 September 2025 are to be in the cause.