SHAN JAU CHEN AND ANOTHER v. YULOOG TRADING CO LTD AND OTHERS

HCA 1243/2025

[2025] HKCFI 3888

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1243 OF 2025

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D E C I S I O N

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A.  Introduction

1.  This decision concerns applications by the Plaintiffs that were listed before me as the Reserved Summons Judge, pursuant to which the following orders were sought:

(1)  an order for interim-interim relief against the 4^th Defendant, pending the substantive hearing of the Plaintiffs’ application for proprietary and Mareva injunctive relief against the 4^th Defendant;

(2)  banker’s books orders against three banks, namely Standard Chartered Bank (Hong Kong) Limited (“SCB”), CMB Wing Lung Bank Limited (“WLB”) and The Hongkong and Shanghai Banking Corporation Limited (“HSBC”) (collectively the “Banks”) in respect of the 1^st to 4^th Defendants’ bank accounts.

(3)  a release from the implied undertaking (also known as the Riddick[1] undertaking) not to use any documents disclosed by the 4^th Defendant and/or the Banks other than for the purposes of the present proceedings.

2.  Following a hearing in which I was addressed by counsel for the Plaintiffs: (a) I granted the Plaintiffs’ application for interim-interim relief, but only in part; (b) I granted the Plaintiffs’ application for banker’s books orders against the Banks on the basis that they were unopposed (save for a discrete limb of the application against SCB, in respect of the 5^th Defendant’s SCB bank account, which was adjourned to be heard at the substantive hearing of the Plaintiffs’ application for injunctive relief against the 4^th Defendant); and (c) I dismissed the Plaintiffs’ application to be released from the implied undertaking. These are the reasons for my decision.

B.  Background

3.  The applications were made against the backdrop of the Plaintiffs’ underlying action against all five Defendants, the facts in relation to which can be stated briefly as follows. The Plaintiffs say they are the victims of a cyberfraud, pursuant to which they transferred substantial sums to the 1^st to 5^th Defendants on a number of occasions between August 2023 to January 2024.

4.  The Plaintiffs’ case is that they transferred the sum of US$1.94 million to various Hong Kong bank accounts held by the Defendants. To be clear, this sum relates only to the transfers the Plaintiffs which were said to have been made to bank accounts in Hong Kong. Further details of the alleged cyberfraud which forms the subject of the underlying action are set out in an affidavit sworn by the 1^st Plaintiff (“Shan 1^st”) on 4 August 2025 and in the Statement of Claim filed by the Plaintiffs and dated 27 June 2025.

5.  The application for proprietary and Mareva injunctive relief is focussed on the 4^th Defendant alone (in contrast to the other applications whose scope extends to all five Defendants). The Hong Kong Police (“HKP”) arrested the 4^th Defendant and issued a Letter of No Consent (“LNC”) in respect of his bank accounts at SCB and HSBC.

6.  The HKP froze a total of US$667,312.97 held in the 4^th Defendant’s bank accounts. However, on 17 July 2025, Mr Clive Tsang of Li & Partners (the Plaintiffs’ solicitors) received an email from the HKP in the following terms:

“legal advice has been sought, and charge against GUO Shaohua [i.e. the 4^th Defendant] will not be proceeded with.

As such, we are no longer in a position to maintain the Letter of No Consent (LNC). Should the victim wish to proceed with civil action, we kindly advise applying for an injunction order at your earliest convenience. We would be grateful if you could advise your client’s decision by 2025-08-01.”

7.  The Plaintiffs subsequently took out a summons for injunctive and other relief against the 4^th Defendant on 7 August 2025. A separate summons was taken out by the Plaintiffs for bankers’ books orders against the Banks on the same day.

8.  By the time of the hearing before me on 15 August 2025 had taken place, the 4^th Defendant was, it seems, no longer in Hong Kong. I was shown an email dated 14 August 2025 that was timed at 5:50pm (in other words the evening before the hearing) that was said to have been sent by the 4^th Defendant’s sister (a Ms Guo Rong) to Mr Alexander Lee and Ms Winona Yeung of Li & Partners, stating that the 4^th Defendant has been hospitalised in the Mainland and would thus be unable to attend the hearing scheduled for the following day. This email was accompanied by attachments consisting of what appeared to be a medical certificate and a series of photographs. The contents of the email from Ms Guo Rong are reproduced below:

“我是郭少华的姐姐郭蓉，郭少华由于刚刚从香港回到内地，身体病惫，又遭遇武汉酷暑高温，现在已经病倒在医院住院治疗，没办法参加8月15日的开庭，万分抱歉！”

9.  It is clear from this email that the 4^th Defendant was aware of the hearing that was to take place on 15 August 2025. However, no legal representatives were instructed to appear on his behalf at the hearing and, notwithstanding that Ms Guo Rong’s email set out an explanation as to why the 4^th Defendant was unable to attend the hearing in person, no request was made for the hearing to be adjourned. Counsel for the Plaintiffs urged me to proceed with the hearing and I considered it appropriate for me to do so.

C.  Application for Interim-interim Relief

C1.  Relevant legal principles

10.  The application before me as against the 4^th Defendant is an application for interim-interim relief, pending the substantive hearing of the Plaintiffs’ application for proprietary and Mareva injunctive relief against the 4^th Defendant.

11.  It is clear from the case law that the threshold by reference to which an application for interim-interim relief falls to be considered is less stringent than the threshold that would apply at the substantive hearing of an application for interim relief. As counsel for the Plaintiffs readily accepted in argument, the purpose of an order for interim-interim relief is to “hold the ring” pending the substantive hearing of the application for interim relief. This is underscored by the fact that the interval between any grant of an order for interim-interim relief and the substantive hearing of the application for interim relief is typically short in duration, hence its double-barrelled moniker (i.e. interim-interim).

12.  This coheres with the exhortations in the case law for the court to do practical justice at the stage at which an interim-interim application is being considered. The authorities go on to lay down a number of principles, by reference to which an application for interim-interim relief is to be considered, which can be distilled as follows:

(1)  The relief is meant to be an urgent temporary stop-gap measure. The court has to do practical justice on the balance of fairness, even though it may not have sufficient time to consider an application for interlocutory relief fully.[2]

(2)  The approach is to take whichever course appears to carry the lower risk of injustice if it should turn out to be wrong.[3]

(3)  An interim-interim injunction is sought at the stage where the parties have not yet completed the filing of evidence and the court has thus not yet had the chance to consider the parties’ submissions in detail. It would thus be impracticable and inappropriate to ask the court to apply the test in American Cyanamid[4] in full force.[5] (I understand this to be a reference to the rigour with which an application would be evaluated by reference to the American Cyanamid test, to the extent such a test would be applicable to the type of interim relief that is being sought.)

(4)  The court is entitled to form a view on the arguability or merits of the plaintiff’s case and it would not be wrong for the court to do so, but any such views can only be provisional, open for further arguments and revisiting in the future.[6] The extent to which a court would give weight to the merits of the underlying action at the interim-interim stage depends on the context and there are obviously other factors at play, including the effect of the grant or refusal of the relief and the subject matter at stake.[7] It is a multi-faceted evaluative assessment.[8]

(5)  The decision of the court on an interim-interim application is in and of itself provisional, such that the unsuccessful party is at liberty to make the same or similar points in light of further evidence and further submissions, with additional citation of authorities.[9]

13.  In the course of making a multi-faceted assessment as to whether or not to grant an interim-interim order, I have borne in mind the fact that the criteria pursuant to which an application for a proprietary injunction is to be considered differs from those applicable to an application for a Mareva injunction. By way of recap:

(1)  For the court to grant a proprietary injunction, the court must be satisfied of the following (viz the American Cyanamid test):[10]

(a)  There is a serious issue to be tried on the merits;

(b)  The balance of convenience is in favour of granting an injunction; and

(c)  It is just and convenient to grant the injunction.

(2)  By contrast, the test for a Mareva injunction is different because the purpose of a Mareva order is not merely to preserve assets over which a plaintiff has a proprietary claim, but extends to cases where a plaintiff only has a personal claim. For the court to grant a Mareva injunction, the court must be satisfied of the following:

(a)  The plaintiff has a good arguable case on a substantive claim over which the court has jurisdiction;

(b)  There are assets within the jurisdiction;

(c)  The balance of convenience is in favour of grant; and

(d)  There is a real risk of dissipation of assets, or removal of assets from the jurisdiction, which would render a judgment of no effect.

14.  The principal differences between the tests applicable to the grant of a proprietary injunction on the one hand and the grant of a Mareva injunction on the other are threefold:

(1)  First, so far as an application for a Mareva injunction is concerned, there is a need to show a real risk of dissipation.[11]

(2)  Secondly, delay in the making of an application which might lead to the refusal of a Mareva injunction may nevertheless have no effect on the grant of a proprietary injunction.

(3)  Thirdly, the court has to be satisfied that there is a good arguable case on the merits as a condition for the grant of a Mareva injunction, whereas the court only need to be satisfied that there is a serious issue to be tried in so far as the grant of a proprietary injunction is concerned.

15.  Given that the application before me is an interim-interim application and that any interim-interim order is designed to simply “hold the ring”, the tests pursuant to which applications for proprietary and Mareva injunctions are granted are only relevant so far as they form part of the multi-faceted assessment I have to undertake in deciding, whether as a matter of practical justice, I should grant the application for interim-interim relief and, if so, to what extent. Such an approach stacks up with the astute observation by DHCJ Paul Lam SC in Shin Rick Ju-Feng and others v Lo Yuen-Li and others [2021] HKCFI 2896 at [17], the upshot of which is that it would be impracticable and inappropriate to ask the court to apply the American Cyanamid test in its full rigour in circumstances where an interim-interim application typically comes before the court at a stage where the parties have not yet completed the filing of evidence. The same could be said to apply by parity of reasoning to the application of the underlying test for Mareva relief, where what is being considered is an interim-interim application for a freezing injunction.

C2.  Applying the legal principles to the present case

16.  Having established the applicable legal principles, I turn to the application for interim-interim relief before me. The Plaintiffs seek an interim-interim order in respect of both a proprietary injunction and a Mareva injunction against the 4^th Defendant. The Plaintiffs seek the following:

(1)  A proprietary injunction against the 4^th Defendant from disposing of or dissipating:

(a)  US$400,000 (or any part of it) transferred from the Plaintiffs’ bank account with the Cambridge Trust Company to the 4^th Defendant’s SCB bank account on 20 November 2023; and

(b)  US$790,000 (or any part of it) transferred from the 1^st Plaintiff’s bank account with Brookline Bank to the 4^th Defendant’s SCB bank account on 4 January 2024.

(2)  Further, a Mareva injunction to restrain the 4^th Defendant from disposing or dissipating his assets up to the sum of US$1.19 million, in particular, to restrain the 4^th Defendant’s SCB and HSBC bank accounts.

17.  The sum sought by the Plaintiffs against the 4^th Defendant by way of a proprietary injunction is in the aggregate amount of US$1.19 million, which is for the same amount as that sought by way of a Mareva injunction. The proprietary and Mareva injunctions sought by the Plaintiffs are flip sides of the same injunctive coin in respect of which their summonses were issued, pursuant to which interim injunctive relief up to the sum of US$1.19 million in total is sought against the 4^th Defendant.

18.  Applying the legal principles discussed in paragraphs 11 to 15 above, I decided to grant the Plaintiffs’ application for interim-interim relief, but only so far as it is directed at restraining the 4^th Defendant from disposing or dissipating the assets which form the subject of the injunctions being sought by the Plaintiffs, for the following reasons:

(1)  If the Plaintiffs are not granted the restraining orders they seek on an interim-interim basis, serious prejudice would be occasioned to the Plaintiffs if there is a disposal or dissipation of assets by the 4^th Defendant absent the restraining orders.

(2)  This is reinforced by the fact that, so far as what is being sought is an interim-interim Mareva order, I am satisfied that there is a real risk of dissipation as a result of the impending lapse of the LNC. The same conclusion was reached by Keith Yeung J in Yan Yu Ying v Leung Wing Hei [2021] HKCFI 3160[12] at [17]: “the lapsing of the no consent letters substantially increase the risk of dissipation”, as a result of which His Lordship granted an interim-interim proprietary injunction (but not an interim-interim Mareva injunction).[13]

(3)  By contrast, as the Plaintiffs point out, the 4^th Defendant will suffer no discernible prejudice even if interim-interim relief is granted, especially since the 4^th Defendant’s SCB and HSBC accounts are already frozen by way of a LNC (albeit for the lesser sum of US$667,312.97).

(4)  In all the circumstances, the scales of practical justice weigh in favour of granting the restraining orders sought by the Plaintiffs on an interim-interim basis, the effect of which would be to “hold the ring” for a short period until the substantive hearing of the Plaintiffs’ applications for interim injunctions against the 4^th Defendant. The grant of the restraining orders on an interim-interim basis carries a lower risk of injustice if this should turn out to be wrong, than the converse situation whereby no interim-interim relief is granted at all.

(5)  The decision I have reached in granting the restraining orders on an interim-interim basis is buttressed by the fact that I am satisfied, on the basis of the materials currently before me, that the Plaintiffs’ claims provisionally meet both the serious issue to be tried and the good arguable case thresholds.

19.  However, this is not the end of the matter. The Plaintiffs seek an ancillary disclosure order against the 4^th Defendant as part of their applications for proprietary and Mareva injunctive relief. Such ancillary disclosure orders are commonplace in the context of applications for proprietary and Mareva injunctive relief. So far as the Plaintiffs’ applications against the 4^th Defendant are concerned, they assume the form of an order that the 4^th Defendant provide written information to the Plaintiffs within 14 days of “all his assets of an individual value of HK$10,000 or more in Hong Kong, whether in their (sic) own names (sic) or not and whether solely or jointly owned, giving the value, location and details of all such assets”.

20.  The Plaintiffs initially appeared to be pursuing the ancillary disclosure order against the 4^th Defendant on an interim-interim basis alongside the order restraining asset disposal. Reference to the ancillary disclosure order was made in the Plaintiffs’ skeleton submissions that were filed for the hearing. Notwithstanding this, counsel for the Plaintiffs clarified at the hearing before me that the ancillary disclosure order was not being pursued on an interim-interim basis. In my view, the Plaintiffs were right to adopt this approach. Had it been pursued, I would have refused to grant the ancillary disclosure order against the 4^th Defendant on an interim-interim basis:

(1)  The grant of an ancillary disclosure order on an interim-interim basis would, all things remaining equal, have gone beyond the concept of an interim-interim order being an urgent temporary stop-gap measure that is designed to “hold the ring”.

(2)  This is even more so in circumstances where the period sought for compliance with the ancillary disclosure order (in this case 14 days) would likely coincide with or be close to the date on which the substantive hearing of the interim relief application would take place. That is not to say that an ancillary disclosure order could never be granted on an interim-interim basis, but the onus would be on the applicant to demonstrate why this is needed.

D.  Application for Bankers’ Books Orders

D1.  Relevant legal principles

21.  The Plaintiffs applied for disclosure orders against the Banks, pursuant to s.21 of the Evidence Ordinance (Cap 8), s.42 of the High Court Ordinance (Cap 4) as well as the court’s ancillary jurisdiction. In support of their application, the Plaintiffs relied on the observations of the Court of Appeal in Pacific King Shipping Holdings Pte Ltd v Huang Ziqiang [2015] 1 HKLRD 830, per Jeremy Poon J (as he then was), delivering the judgment of the Court of Appeal at [29]:

“If the case involves a proprietary claim where the plaintiff seeks to trace property which in equity belongs to him, the court not only has jurisdiction to grant an injunction restraining the disposal of that property, it may in addition make orders designed to ascertain the whereabouts of that property. In particular, it may order a third-party bank to give discovery of documents in relation to the bank account of a defendant who is alleged to have defrauded the plaintiff of his assets…”

22.  Nonetheless, as the Court of Appeal went on to make clear in a later passage in the same decision, the position is different where the case does not involve a proprietary claim. It would be unusual for the plaintiff to seek information from third party banks for the purpose of court proceedings concerning the granting or continuation of Mareva relief: see Pacific King (supra) at [31]. Indeed, the court will normally refuse to order further disclosure in addition to the standard disclosure by the Mareva respondent: Pacific King (supra) at [32]. This resonates with the observations by Le Pichon JA in RACP Pharmaceutical Holdings Ltd v Li Xiaobo (unrep, CACV 139/2007, [2007] HKEC 1713) (19 September 2007) at [15], citing AJ Bekhor & Co Ltd v Bilton [1981] QB 923:

“…Discovery directed at finding out whether the defendant had ‘dissipated’ or ‘concealed’ [the monies which the plaintiff paid the defendant]. In other words, ‘policing’, is not a legitimate purpose for making a disclosure order.”

D2.  Applying the legal principles to the present case

23.  The Plaintiffs’ application for bankers’ books orders against the Banks were said to enable the Plaintiffs to trace their monies by providing a detailed account of the inflow and outflow of funds after receipt of the Plaintiffs’ monies by the Defendants.

24.  The application for bankers’ books orders were not resisted, in that the Banks took a neutral position in respect of the orders sought against them. The orders sought against the Banks contained a provision that the Plaintiffs indemnify the Banks in respect of the costs incurred by the Banks incidental to the application against them and in complying with the orders sought against them.

25.  Given that they were not resisted, I granted the orders sought against the Banks, save for a discrete limb of the application against SCB in relation to the 5^th Defendant’s bank account at SCB. The summons taken out by the Plaintiffs contained an error as to the account number of the 5^th Defendant’s bank account at SCB and, pursuant to an application made by the Plaintiffs, I ordered that this part of the application against SCB, after it has been amended to reflect the correct account number, be adjourned to be heard at the substantive hearing of the Plaintiffs’ application for injunctive relief against the 4^th Defendant.

E.  Application for Release from the Implied Undertaking

26.  I would like to state from the outset of this section of the decision that in neither the Summons taken out by the Plaintiffs against the 4^th Defendant, nor in the Summons taken out by the Plaintiffs in relation to the bankers’ books orders, did the Plaintiffs expressly apply to be released from the implied undertaking (or Riddick undertaking) not to use any documents disclosed by the 4^th Defendant and/or the Banks other than for the purposes of the present proceedings.

27.  Nonetheless, the draft orders accompanying both sets of applications included wording that made it clear that such a release was being sought. That no express reference was made in either set of Summons to an application to be released from the implied undertaking was unfortunate. This is compounded by the fact that the Plaintiffs’ skeletal submissions did not contain an express request for a release from the implied undertaking. The affidavit filed in support of the applications (i.e. Shan 1^st) was only slightly more illuminating, in that there was express reference in paragraph 57 of the affidavit to the prospect of the disclosure obtained from the Banks being potentially used to bring proceedings against other recipients of the Plaintiffs’ monies. However, there was, at best, only an indirect reference in paragraphs 54 and 55 in Shan 1^st to the disclosure from the 4^th Defendant being used in other proceedings.

28.  This is a far from satisfactory manner in which to apply for a release from the implied undertaking. Parties who wish to apply for a release should refer to such an application in clear terms in their Summons, their affidavit evidence and in their skeletal submissions.

29.  The release which the Plaintiffs are seeking was worded in broad terms:

(1)  The draft order as against the 4^th Defendant sought to allow the Plaintiffs “leave to adduce information and documents disclosed by the 4^th Defendant in this action in such other civil actions and in such other jurisdictions as may become necessary in the tracing and recovery of their assets”.

(2)  The draft order as against the Banks contained release provisions that were couched in similarly broad terms, and sought to allow Plaintiffs “leave to use any information obtained as a result of this Order for the purposes of: [a]ctual or contemplated proceedings against defendants in Hong Kong or elsewhere; and … [i]nvestigation, commencing and/or pursuing civil proceedings, whether in Hong Kong or elsewhere, against persons or entities implicated in any wrongdoing by such information”.

E1.  Relevant legal principles

30.  The applicable principles pertaining to an application for a release from the implied undertaking have been dealt with in a number of decisions, including that of Chu J in Anite Telecoms Ltd v World Best Cargo-Link Co Ltd [2015] HKCFI 1909, Unicredit Bank Austria AG v Dragon Wise Trading Ltd [2013] 2 HKLRD 169 and Re NDT (BVI) Trading Ltd [2009] 5 HKLRD 615. The principles were helpfully summarised by DHCJ José-Antonio Maurellet SC (as he then was) in The Jewish Federation of Greater Washington, Inc v Aiwo Trading Co, Limited and another [2021] HKCFI 1381 at [7], whose summary is reproduced below and which I gratefully adopt (with my emphasis added):

(1)  Where release from the undertaking is sought, it is for the person obtaining the documents to demonstrate cogent and persuasive reasons why it should be released.

(2)  Each case turns on its own facts and no general principles can be formulated beyond stating that the court will not release or modify the implied undertaking, save in special circumstances and where the release or modification will not occasion injustice to the person giving discovery.

(3)  While the discretion is at large and unfettered, a number of factors have been identified as militating in favour or against the exercise of such a discretion. The following factors can also be considered in that exercise:

(a)  Whether the proposed collateral use is in court proceedings or outside litigation. If it is for use outside litigation, it is not the court’s function to release for that purpose.

(b)  And in so far as the collateral use is in aid of satellite proceedings in this jurisdiction, if these are criminal proceedings, the court must take into account the possibility of the application being a method of bypassing the privilege against self-incrimination.

(c)  In so far as the documents are to be used in proceedings abroad, if the satellite proceedings are criminal, the court in this jurisdiction should be wary of doing anything which may subject the disclosing party to an unfair disadvantage in those proceedings.

(4)  On the other hand, the court will bear in mind that in the absence of any other factors argued to constitute some injustice, the public interest and investigation or prosecution of serious fraud should take precedence over the general concern of the court’s controlled collateral use of compulsorily disclosed documents.

(5)  The implied undertaking would be relaxed where a strong case of fraud had been demonstrated to be committed on the plaintiff and the public interest in the combat of serious and extraterritorial fraud should take precedence over the general concern of court’s controlled collateral use of bankers’ documents disclosed under compulsion of court orders.

31.  To the above I would add the observation that the need for the plaintiff to demonstrate cogent and persuasive reasons as to why it should be released from the implied undertaking is further underscored when one is dealing with third party disclosure orders against banks. Indeed, the orthodox position, so far as third party disclosure orders against banks are concerned, is that the plaintiff “would normally be required to give an undertaking that such information would be used only for the purposes of the action to trace the funds and not for any other purposes”: Pacific King (supra), per Jeremy Poon J at [29], citing His Lordship’s earlier decision in CTO (HK) Ltd v Li Man Chiu [2002] 2 HKLRD 875 at [12]. To my mind, this has much to do with the fact that the grant of such an order against third party banks touches on the confidential relationship of banker and customer and the obligations owed by the former to the latter.

32.  When considering whether or not cogent and persuasive reasons have been established to warrant a release from the implied undertaking, the court should balance the interests advanced for extraneous use of the disclosed documents against the interests that are protected by the implied undertaking, as to which see the decision of the Singapore High Court in Compania De Navegacion Palomar SA v Ernest Ferdinand Perez De La Sala [2025] SGHC 153, per Chua Lee Ming J at 14(c) (citing the judgment of the Singapore Court of Appeal in Ong Jane Rebecca v Lim Lie Hoa and other appeals and other matters [2021] 2 SLR 584, per Steven Chong JCA at [99]):

“…the party relying on the protected documents to commence or sustain related proceedings must seek the court’s permission for the undertaking to be lifted. The test is based on a balancing of interests. Permission will only be granted if, in all the circumstances of the case, the interests advanced for the extraneous use of the disclosed documents outweigh the interests that are protected by the Riddick undertaking (Lim Suk Ling Pricilla and another v Amber Compounding Pharmacy Pte Ltd and another and another appeal and another matter [2020] 2 SLR 912 (“Priscilla Lim”) at [45]–[46]).”

33.  So far as the approach to making such an application is concerned, there is much to commend the issues-based analysis used in Re NDT (BVI) Trading Ltd (No. 2) [2009] 5 HKLRD 615 (Kwan JA, as she then was). This concerned a (successful) release application by the plaintiff to allow documents that had been disclosed in winding-up proceedings to be used in (a) a separate High Court action; (b) to lodge a criminal complaint for perjury; and (c) to lodge a complaint to the Law Society against a firm of solicitors for purporting to act without proper authority. The issues-based approach adopted by the plaintiff is recorded in the judgment at [9] and provides a useful guide as to the approach that should be adopted in applications of this kind:

“Ms Ismail has placed before me a detailed submission with meticulous analysis of the issues in the petition and the Guarantee Action. I also have from the petitioners’ solicitors in a separate document a table listing each of the documents disclosed in the petition sought to be used in the Guarantee Action, to lodge a criminal complaint and a complaint to the Law Society, and what particular issue or issues each document is relevant to. Five issues are listed in that table. Issues A–C are relevant to issues in the Guarantee Action. Issue D is relevant to the complaint of perjury by Pang and Lo, and issue E is relevant to the complaint against [a firm of solicitors] to the Law Society.”

E2.  Applying the legal principles to the present case

34.  I have little difficulty in refusing the Plaintiffs’ application for a release from the implied undertaking, whether in relation to the documents potentially disclosed by the 4^th Defendant or those that are to be disclosed by the Banks. Quite apart from the fact that the Plaintiffs did not address any of the legal principles relevant to such an application in their skeletal submissions or orally at the hearing, it became plain from my exchanges with the Plaintiffs’ counsel at the hearing that it is far from clear that the Plaintiffs would be relying on any such disclosures in initiating other legal proceedings.

35.  When pressed, the Plaintiffs’ counsel merely referred to the prospect that the Plaintiffs might take out separate proceedings against further layers of recipients of the Plaintiffs’ funds. At one stage, counsel went so far as to say this: “the need for … separate proceedings may arise from practical concerns of convenience and depending on the stage of the existing proceedings, it might be or it might not, but we do not know at this stage, that it may be more convenient to pursue a separate proceedings against further recipients down in the chain” (emphasis added).

36.  The tentative language in which the Plaintiffs’ oral submissions were couched is the antithesis of the need to demonstrate cogent and persuasive reasons as to why the Plaintiffs should be released from the implied undertaking. Furthermore, a release sought at this stage in respect of any disclosure that is to be provided by the 4^th Defendant would be premature, in circumstances where I have refused to make the ancillary disclosure against the 4^th Defendant on an interim-interim basis.

37.  None of this is to say that the Plaintiffs would not be entitled to apply for a release from the implied undertaking on a future occasion. However, any such application should be made with reference to the relevant legal principles set out in paragraph 30 above. It should also ideally adopt the meticulous approach on which the release application in Re NDT (supra) was based.

F.  Conclusion

38.  For the reasons set out above:

(1)  The Plaintiffs’ application for interim-interim relief is granted, but only so far as it relates to the restraining orders by which:

(a)  a proprietary injunction is granted to restrain the 4^th Defendant from disposing of or dissipating: (i) US$400,000 (or any part of it) transferred from the Plaintiffs’ bank account with the Cambridge Trust Company to the 4^th Defendant’s SCB bank account on 20 November 2023; and (ii) US$790,000 (or any part of it) transferred from the 1^st Plaintiff’s bank account with Brookline Bank to the 4^th Defendant’s SCB bank account on 4 January 2024; and

(b)  further, a Mareva injunction is granted to restrain the 4^th Defendant from disposing or dissipating his assets up to the sum of US$1.19 million, in particular, to restrain the 4^th Defendant’s SCB and HSBC bank accounts.

(2)  The Plaintiffs’ application for banker’s books orders against the Banks is granted (save for a discrete limb of the application against SCB, in respect of the 5^th Defendant’s SCB bank account, which was adjourned to be heard at the substantive hearing of the Plaintiffs’ application for injunctive relief against the 4^th Defendant).

(3)  The Plaintiffs’ application to be released from the implied undertaking is dismissed.

39.  Costs of the applications shall be reserved as between the Plaintiffs and the 1^st to 5^th Defendants.