JRJ INVESTMENT FUND, LTD v BAITONGYUAN TRADING CO., LTD

HCA 195/2018
[2018] HKCFI 167

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 195 OF 2018

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DECISION

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The application

1.  This is the hearing of the plaintiff’s inter partes summons dated 23 January 2018 seeking continuation of the asset preservation / Mareva injunction granted ex parte by Deputy Judge Yee on 22 January 2018 (“the Injunction Order”).

The factual background

2.  In gist, the plaintiff’s case is that it is the victim of one incident of email fraud.  According to the affirmation dated 22 January 2018 of Mr Robin Picard, the plaintiff’s managing director, the fraudster(s) “spoofed” his email address, impersonated him, and gave instructions to his assistant to effect a transfer of US$600,000 to an account held in the name of the defendant.  The defendant is a Hong Kong company.  There was no underlying transaction between the plaintiff and the defendant which justified the payment.  It was an outright fraud.  The plaintiff has as a result suffered loss in that same amount.   

The Injunction Order

3.  Upon the plaintiff’s ex parte application, Deputy Judge Yee granted against the defendant the Injunction Order.  It is a proprietary cum Mareva injunction.  Following that, the plaintiff has filed a generally indorsed Writ of Summons and an inter partes summons for continuation of the Injunction Order — hence this hearing.

Service of documents

4.  I have before me the affirmation of Mr Lau Siu Yuk dated 24 January 2018.  I am satisfied that the generally indorsed Writ, a sealed copy of the Injunction Order, all the relevant documents previously filed in support of the application for the same, and a copy of the inter partes summons have all been properly served upon the defendant.

5.  Nothing has been heard from the defendant.  No representative of its appeared during the hearing.

6.  Pursuant to Order 32, rule 5(1) of the Rules of High Court, the court may proceed in the defendants’ absence if “having regard to the nature of the application, it thinks it expedient to do so”. 

7.  As said, I am satisfied with the service of the process and documents. Bearing in mind the nature of the allegations, I am not at all surprised that no one from the defendant showed up.  I deem it expedient to proceed with the application in the defendant’s absence.

Continuation of the Injunction Order

8.  I have read the affirmation of Mr Picard.  I have also read the written submissions of Mr Tai, counsel for the plaintiff, filed in support of the ex parte application and the present summons.  On the facts, and in the absence of any competing evidence, I am satisfied that the granting of the Injunction Order was perfectly justified.  I am further satisfied that the order should further be continued until trial or further order, and I so order.  The costs of this application shall be reserved.