|
HCA 103/2022
[2022] HKCFI 3319
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 103 OF 2022
________________________
|
BETWEEN
|
| |
LO SIU KIT (盧紹杰) |
Plaintiff |
| |
and |
|
| |
TSANG LING SHING IGNATIUS |
1st Defendant |
| |
LINGFENG ELECTRONIC (HK) LIMITED |
2nd Defendant |
________________________
Before: Deputy High Court Judge Leung in Chambers (Remote Hearing)
Date of Hearing: 13 April 2022
Date of Decision: 31 October 2022
________________
D E C I S I O N
________________
1. The plaintiff has allegedly been deceived to part with a sum of money, which ended up with the 1st defendant and the company owned or controlled by him, ie the 2nd defendant. The plaintiff took out the present inter partes application against the defendants for proprietary and mareva injunctions as well as ancillary asset disclosure order. He also applies against the defendants’ banker for disclosure order. Because of the then general adjournment period of the court, the parties were heard remotely via videoconferencing facility of the court.
BACKGROUND
2. The plaintiff, a businessman who operates in both Hong Kong and the Mainland, gave the following account of what happened.
3. While he was in the Mainland at the end of 2019, the plaintiff was introduced first to a person known as Lin Jianguo (林建國) (“Lin”) and then another person known as Lian Songyu (連松育) (“Lian S”). Lin and Lian S, verbally and with some documents, persuaded the plaintiff to engage them to help acquiring 30% holdings in 北京人壽保險股份有限公司 (transliterally Beijing Life Insurance Shareholdings Company Limited) (“Beijing Life Insurance”) from the holder國美控股集團有限公司 (transliterally Guo Mei Holdings Group Limited Company) (“Guo Mei”).
4. For the alleged acquisition plan, the plaintiff was requested to part with a sum of HK$12 million as service fee payable upfront. It was represented to the plaintiff that the sum would be returned to him in full in the event that the acquisition plan did not materialize.
5. As a result, the plaintiff issued a cheque dated 21 April 2020 drawn on his bank account with HSBC for the sum of HK$12 million (“the Sum”). He crossed the cheque, but left the name of the payee on it blank pending further information from his counterpart. The cheque was then passed to Lin in Shenzhen.
6. In the morning of 21 April 2020, Lin sent to the plaintiff a photo-shot of the cheque, on which the 1st defendant’s name was inserted as the payee. An account number 611-031956-XXX was also provided, which the plaintiff took to be the bank account into which the cheque for the 1st defendant would be deposited. On the same day, the plaintiff was informed by HSBC that the cheque was deposited.
7. Time passed and the plaintiff saw no progress in the shares acquisition plan. The apparent stalling tactics by his counterparts also caused him concern and to suspect. After investigation, the Plaintiff came to realise that Guo Mei did not own such shares in Beijing Life Insurance which he could acquire. He has been defrauded. It was already May 2021.
8. The plaintiff then reported the matter to the Mainland police. Pursuant to their advice, the plaintiff also filed his report with the Hong Kong police. It was about August 2021.
9. The written information from the Hong Kong police in late December 2021 revealed that the police has (by way of a letter of no consent) caused the 2nd defendant’s bank account (HSBC a/c no 124-333881-XXX) to be frozen on the ground of suspicion of involvement in money laundering. In early January 2022, the police further revealed to the plaintiff that they have in fact arrested the 1st defendant in November 2021. The 1st defendant was said to have transferred money into the 2nd defendant’s bank account mentioned above. No charge was laid against the 1st defendant yet as of then.
10. Pausing here, a mistake should have been corrected. The police in their email in January 2022 mentioned above referred to the bank account number of the 1st defendant, which was in fact the account number of the plaintiff mentioned above. The correct account number of the 1st defendant mentioned above refers. Somehow the mistake has been adopted and referred to as the “1st tier recipient” of the Sum in the plaintiff’s court documents including the writ, statement of claim and affirmations. The mistake remains in counsel’s submissions, until this court pointed that out at the hearing. The plaintiff undertook to amend. Subject to that, and without objection, this court allowed the parties to proceed on the basis of the application as so amended.
11. The plaintiff commenced the present action in January 2022. On the same day, he took out the present inter partes summons for injunctions against the defendants and disclosure order against HSBC in respect of the defendants’ bank accounts. It was by then more than half a year after his discovery of the alleged scam against him. The court hearing the parties adjourned the application with directions for inter partes argument. Hence the present hearing.
12. The plaintiff filed his statement of claim in April 2022.
THE PARTIES’ RESPECTIVE CASES
13. There is no dispute that the plaintiff’s cheque for the Sum was received and deposited by the 1st defendant into his personal account mentioned above. He then transferred part of the Sum to the 2nd defendant’s bank account mentioned above. The arrest of the 1st defendant mentioned above is also undisputed. The plaintiff and the defendants did not know each other, and they had no business dealing with each other.
14. It is the plaintiff’s case that he is entitled to the return of the Sum from the defendants on the ground of payment by mistake on his part and unjust enrichment on the part of the defendants. He asserts a proprietary claim over the Sum or any remaining part thereof against the defendants on the ground that they have received and retained the same knowingly or dishonestly, and that they hold the Sum or any remaining part thereof on constructive trust for him.
15. The defendants deny any involvement in the dealings between the plaintiff and Lin and Lian S. Nor do they know either of Lin or Lian S. Their case is that the Sum was received as a short term loan agreed between the 1st defendant as the borrower and a person known as Lian Xingzhong (連興中) (“Lian X”) as the lender. Further, the loan has been fully repaid shortly after the extension of the loan.
INTERLOCUTORY INJUNCTIONS – THE PRINCIPLES
16. The following principles regarding proprietary injunction were recently summarised in Zhang Yan & Ors v Asa Bullion Ltd [2019] HKCFI 179 (at §11), and are not in dispute:
(1) Where a plaintiff asserts title to property or seeks to trace property which belongs to him, the court has jurisdiction to grant a proprietary injunction restraining the disposal of that property.
(2) For the grant of a proprietary injunction, there are three elements which the plaintiff has to demonstrate: (a) that there is a serious issue to be tried on the merits; (b) that the balance of convenience is in favour of granting an injunction and (c) that it is just and convenient to grant the injunction. It is not necessary to show any risk of dissipation of assets.
(3) A proprietary injunction must relate to a specific asset held by or under the control of the defendant, or its traceable proceeds, in respect of which a proprietary claim is raised by the plaintiff.
(4) In order to justify the grant of a proprietary injunction, the plaintiff should ordinarily adduce some reasonable evidence of the existence of the specific asset (or its traceable proceeds) and that the same is being held by or under the control of the defendant. Where the asset forming the subject matter of the proprietary claim has been dissipated and can no longer be traced, a proprietary injunction cannot ordinarily be granted.
17. The principles regarding mareva injunction are trite. The plaintiff must show the follows:
(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 is in favour of grant of the injunction.
(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.
MERITS OF THE CLAIM
Unjust enrichment
18. The applicable principles were summarized in Predicine Holdings Ltd v Bianchi (Hong Kong) Ltd & Ors [2021] HKCFI 123 (at§§77-78). Money paid under a mistake of fact is prima facie recoverable based on unjust enrichment: see for instance Tang Yuan Yi v Tokyo International Investment Ltd [2021] 2 HKLRD 623 (at §15). In the circumstances of this case, the plaintiff’s case of payment by mistake is more than arguable. There is no dispute that he had no reason to make the payment to either of the defendants for their benefit.
19. The case of the defendants is that he received the plaintiff’s cheque for the Sum as a loan from Lian X, who is his business partner or friend known by him since 2011. The loan was obtained to fund the 1st defendant so that he could inject the same into 2nd defendant for increasing its paid up capital. However, once injected, the money would be lent back by the 2nd defendant as loan to the 1st defendant as shareholder so as to enable him to repay the same to Lian X. As such, the loan was short term, for 7 to 10 days, and interest free.
20. According to the 1st defendant, Lian X represented to him that the plaintiff, drawer of the cheque for the Sum, was the 出資人 (or investor). He deposited the plaintiff’s cheque into his account, and then transferred the money to the 2nd defendant’s account. The money was then withdrawn and repaid to Lian X by way of payments to other third party accounts specified by Lian X.
21. Whilst they share the same surname, there is no evidence the Lian S, that procured the plaintiff to part with his cheque for the Sum, and the Lian X, who passed the plaintiff’s cheque to the 1st defendant, is the same person or are related.
22. For the following reasons, while it is the plaintiff’s burden to demonstrate the merit of his case, the defendants’ case and evidence are not impressive or effective in changing the prima facie view of the plaintiff’s case for the present purpose.
23. First, whilst Lian X, as the 1st defendant’s alleged business partner or friend, is said to have agreed to lend to the 1st defendant interest free, there is no account of any understanding on their parts as to why the plaintiff would come to agree to be the provider of the Sum for such alleged loan. The assertion that the plaintiff was the investor requires much explanation to be objectively believable. There is no mention of any understanding on the part of Lian X or the 1st defendant as to the terms on which the plaintiff agreed to provide the Sum or any return that the plaintiff might expect from the so-called investment of the Sum, which was substantial. The fact was that the plaintiff obtained nothing in return. This begs the question of why the plaintiff would come to agree to provide the Sum, which he knew would be paid to the 1st defendant who was stranger to him. The relatively more reasonable explanation comes from the plaintiff’s case.
24. Second, the movement of the Sum after the 1st defendant has received it invites only suspicion. According to the 1st defendant, the Sum moved as follows:
(1) Upon deposit of the Sum into the 1st defendant’s account on 21 April 2021, HK$3.5 million was repaid immediately because he did not actually need so much. However, the repayment was made by way of payment to a third party specified by Lian X. On the same day, HK$1 million of the Sum was retained in the 2nd defendant’s account.
(2) On 22 April 2020, HK$5 million of the Sum was transferred by the 1st defendant to the 2nd defendant’s account, but HK$3 million was said to be repaid by way of payment to a third party specified by Lian X on the same day.
(3) On 24 April 2020, HK$1 million was transferred by the 1st defendant to the 2nd defendant’s account, but a sum equivalent to about HK$2.7 million was said to be repaid by way of payment to a third party specified by Lian X on the same day.
(4) On 27 April 2020, HK$1 million was transferred by the 1st defendant to the 2nd defendant’s account, but HK$1.2 million was said to be repaid by way of payment to a third party specified by Lian X on the same day.
(5) Between 27 April and 1 May 2020, another sum equivalent to about HK$1.6 million was said to be repaid by way of payment to a third party specified by Lian X.
25. As such, the Sum received by the 1st defendant and transferred to the 2nd defendant was swiftly transferred further away to four different third parties allegedly at the request of Lian X, notwithstanding that Lian X is said to be the lender to the defendants. There is no account of the understanding on the part of the 1st defendant as to why the alleged repayment of the entirety of the Sum would be made to these third parties, when the 1st defendant knew that the plaintiff was the provider of the Sum. This was so, notwithstanding the 1st defendant’s claim that he somehow did not require the entirety of the Sum and therefore repaid HK$3.5 million mentioned above immediately upon receipt of the Sum on 21 April 2020. All that the 1st defendant could depose to was his trust in Lian X, but that objectively does not suffice as an answer to why he cared not to know the basis for such requests of Lian X.
26. Third, the genuineness of the alleged capital increase plan of the 2nd defendant also calls for scepticism. Amongst other things, the 2nd defendant’s newly allotted shares were said to be fully paid up, and thus increase in capital, on 20 April 2020, according to the return of such allotment dated 23 April 2020. As summarised above, that would have pre-dated the issuance of the plaintiff’s cheque and the 1st defendant’s receipt of the Sum. The 1st defendant’s own case is also that he did not fully inject the capital into the 2nd defendant until 27 April 2020. Further, insofar as the alleged immediate loan by the 2nd defendant of the Sum back to the 1st defendant to enable him to repay Lian X is concerned, there is no document such as the company’s resolution concerning such financial arrangement between the defendants.
27. Fourth, with the swift transfer away of the Sum after its receipt by the 1st defendant, what remains on record is the return of the increase in the paid up share capital of the 2nd defendant. The alleged benefit that the 1st defendant claims to have obtained by merely that, in terms of alleged assistance to the 2nd defendant in securing loans from the financial institutions, is not readily understandable or credible.
28. Last, the 1st defendant deposed to the effect that he believed the arrangement made by Lian X in relation to the handling of the Sum was proper. Lian X is his alleged business partner and friend. In that case, all the fair queries raised by the plaintiff as mentioned above could have been answered and even rebutted by Lian X. However, there is no affidavit from Lian X. This is so, notwithstanding the fact that the 1st defendant has been arrested in November 2021 for this matter and that he has been aware of the present application since January 2022. The 1st defendant filed his affirmation in opposition in mid-February 2022. This hearing was held in April 2022. It is not readily apparent why the 1st defendant has not or could not have secured affidavit evidence from Lian X to rebut the plaintiff within such ample time. The 1st defendant adduced some photo-shots of the WeChat conversation with Lian X. However, the same falls far short of evidencing the above matters. The conversation could not even be sensibly traced, partly because a substantial part of the conversation took the form of audio messages, the contents of which are simply unknown.
29. As submitted on behalf of the plaintiff, insofar as the defendants attempt to run the defence of bona fide purchaser for value or alteration of position, the above queries about their case as a matter of fact, which the defendants fail to properly and adequately address, drives this court to form the tentative view for the present purpose that such defence lacks bona fide. The plaintiff succeeds in demonstrating a good arguable case of unjust enrichment against them.
Knowing receipt and constructive trust
30. Liability for knowing receipt is established on proof that the recipient knew the assets have been transferred to him in breach of trust, such that it is unconscionable for him to retain the benefit of the receipt. Such knowledge may be present at the time of receipt or may be acquired subsequent thereto, whilst he still holds onto the assets or their traceable proceeds: see Predicine Holdings (above) (at §79); see Guaranty Bank and Trust Co v ZZZIK Inc Ltd HCA 1139/2016 (18 July 2016) (at §§32-36). Being the person in control and the sole director of the 2nd defendant, the 1st defendant’s relevant knowledge is attributable to the 2nd defendant.
31. Following the discussion in the preceding section, this court forms the tentative view that the plaintiff has an equally good arguable case in respect of the knowledge on the part of the 1st defendant, which was attributed to the 2nd defendant, that constitutes a case of knowing receipt and constructive trust of the Sum originated from the plaintiff, and that the retention (and diversion) of any part of it by the defendants was unconscionable.
Dishonest assistance
32. Dishonest assistance requires proof of the requisite state of mind. Inferences may be drawn taking into account what the person knew, said and did: see Predicine Holdings (above) (at §81-83). Again, the tentative view of this court, on the basis of the discussion above, is that the plaintiff has a good arguable case against the defendants on this limb in respect of the misappropriation of the Sum from the plaintiff.
PROPRIETARY INJUNCTION
33. Whilst the plaintiff manages to establish for the present purpose a good arguable case on the merits, his application for proprietary injunction suffers from fundamental problems. The problem lies in identifying the Sum or the part of it or its proceeds so traced into the account of the defendants that the proprietary injunction sought could bite.
34. The plaintiff seeks a proprietary injunction in respect of the entirety of the Sum against the 1st defendant. This court is asked to proceed on the basis that the entirety of the Sum remains as of today in his account. On his behalf, it is argued that the evidence that the Sum was deposited into the 1st defendant’s account and then transferred to the 2nd defendant’s account does not suffice, as adverse inference should be drawn against the 1st defendant for the lack of disclosure of any of his bank statement in respect of his account.
35. The plaintiff’s argument differs from the known reality.
36. First, it is the plaintiff’s own pleaded case that the 1st defendant caused the transfer of the Sum or part of it to the 2nd defendant’s account. Hence the pleaded claim against the 1st defendant for the Sum and against the 2nd defendant for that part of the Sum so transferred to it (defined as the “Remaining Balance” in the endorsed writ and the “Transferred Amount” in the statement of claim) or their traceable proceeds.
37. Second, the evidence in respect of the transfer of the Sum to the 2nd defendant did not come as mere assertion of the defendants, but also the result of the investigation by the police, albeit the exact amount involved unknown.
38. Third, the plaintiff is incoherent in his stance. When it comes to the application against the 2nd defendant, the plaintiff seeks a proprietary injunction also in respect of the entirety of the Sum on the basis that first, there is evidence that at least part of the Sum has been transferred from the 1st defendant’s account to its account; and second, the assertion and evidence in respect of the withdrawal from the 2nd defendant’s account for the alleged repayments to Lian X by way of payments to various third parties at the request of Lian X carry no weight. The plaintiff cannot maintain such stance in respect of the 2nd defendant side by side with that in respect of the 1st defendant mentioned above.
39. Fourth, in terms of legal authority, the plaintiff relies The Maitri Trust v Hong Fei Sheng (HK) Trading Co Ltd & Ors [2020] HKCFI 2764 (at §47) in support of his contention that it is justifiable to grant a proprietary injunction in respect of the whole defrauded sum where the plaintiff has limited visibility into the flow of funds from the payee bank account. He therefore seeks proprietary injunction in respect of the entirety of the Sum against the 1st and the 2nd defendants respectively.
40. The reliance on The Maitri Trust is misplaced. There the learned Deputy Judge was addressing the issue of whether the ex parte judge was justified in granting an ex parte proprietary injunction against each of the three defendants for the entire defrauded sum, in view of the limited and informal information about the movement of the sum at the ex parte stage then. Contrary to that, the application before this court is inter partes, where the plaintiff has the burden of establishing the subject matter in the hands of the respective defendants for an order to put that under the proprietary restraint. The discussion of the circumstances in The Maitri Trust does not absolve the plaintiff of such burden. In fact, what counsel does not cite from The Maitri Trust was (at §48) the fact that the plaintiff in that case indeed rectified the situation promptly after the ex parte stage by varying the amount subject to the injunction against one of the defendants upon ascertaining the extent to which such defendant should be so restrained.
41. Fifth, the plaintiff could have equipped himself for the application. He has had the time, since discovering the scam by mid-2021 and learning from the police by early 2022 about the transfer of part of the Sum into the account of the 2nd defendant, to seek disclosure from the defendants’ banker. Somehow the plaintiff has not done so until now at the same time when he applies for the injunctions.
42. In my judgment, the materials before this court do not suffice for forming a reasonable belief that the Sum remains with the 1st defendant or identifying part of the Sum with the 2nd defendant for a proprietary injunction now to bite. The inference that the plaintiff asks this court to draw is not justified and does not assist him. Nor was counsel really able to improve the situation in her submission in court. It is hard in the circumstances to say it would be just and convenient to grant the proprietary injunction sought and in the terms proposed.
MAREVA INJUNCTION
43. The application for mareva injunction comes to be considered differently, as this seeks to restrain the disposal of the assets of the defendants generally on the basis of real risk of dissipation.
44. Insofar as the merits of the claim are concerned, the above discussion refers.
45. Insofar as the existence of the defendants’ assets in Hong Kong is concerned, the defendants’ own case confirms that.
46. The defendants argue that any dissipation of assets would have happened by now, and therefore the risk of that projected by the plaintiff has no basis. Balancing all the circumstances, I do not agree that this is a complete answer.
47. Risk of dissipation can be inferred, and a claim based on dishonest misappropriation of the plaintiff’s property and the bona fide of the defence to such claim are relevant: see Convoy Collateral Ltd v Cho Kwai Chee (aka Cho Kwai Chee Roy) & Ors [2020] HKCA 537 (at §§46-47); Predicine Holdings (at §76(10), (11)); RPB SA (a company incorporated in accordance with the laws of Argentina) v Healthy Food Ltd & Ors [2021] HKCFI 1153 (at §§33, 35).
48. The circumstances of the case, as discussed above, are such that this court could infer a real risk of dissipation of assets on the part of the defendants, if not restrained, that would render the enforcement of any judgment obtained by the plaintiff difficult. That the 2nd defendant’s bank account has been subject to the letter of no consent by the police since the end of 2021 partly explains the actual absence of anything sinister about the assets of the defendants. The risk of dissipation, if not curbed by an injunction, is still real.
49. The 1st defendant highlights the potentially disastrous impact of an injunction on the business of the 2nd defendant and livelihood, especially in view of the pandemic. First, one cannot assume that the pandemic impacts on the defendants more than the plaintiff. Second, the concern is normally addressed by appropriate exception to accommodate the daily living and business expenses of a defendant. This court notes that nothing in this respect is suggested on behalf of the defendants for this court’s consideration.
50. All things considered, I am satisfied that the balance of convenience lies in favour of granting the mareva injunction.
THE DISCLOSURE ORDER APPLICATION
51. The plaintiff applies for the ancillary disclosure of assets against the defendants. I would grant that.
52. The plaintiff also applies for disclosure order in respect of the defendants’ bank accounts against their banker, HSBC. As mentioned above, the timing of such application is way later than normally expected. That said, this court still sees the utility of such order for enabling the tracing of the Sum from the defendants in the circumstances of this case. The tracing remains legitimate particularly if such disclosure has not been forthcoming from the defendants even for the purpose of their own case up to this stage.
Principles
53. For a so called Bankers Trust order to be made, the plaintiff must demonstrate: (i) a real prospect that the information sought may lead to the location or preservation of assets to which he is making a proprietary claim; (ii) specificity in the documents that the bank is asked to produce; and (iii) balancing the potential advantage against the prejudice e.g. invasion of privacy: see CTO(HK) Ltd v Li Man Chiu & Ors [2002] 2 HKLRD 875 (at §13).
54. The ambit of the disclosure is set out in the draft order, which does not appear to be unjustifiable for the purpose of tracing of the Sum and its proceeds.
55. By letter dated 25 January 2022, HSBC indicated that it has no intention of contesting the application, and will comply with any order made by the court and served on it.
56. The usual undertaking is given by the plaintiff.
ORDER
57. As for the application for injunction, I grant a mareva injunction against the defendants in line with the terms sought, that is:
(1) the 1st defendant and the 2nd defendant, jointly and severally, whether acting by themselves, their nominees, servants or agents whatsoever, be restrained from removing from Hong Kong any of their assets in Hong Kong, whether in their own names or not, and whether solely or jointly owned, up to the total value of HK$12,000,000, or in any way disposing of or dealing with or diminishing the value of any of such assets up to the total value of HK$12,000,000;
(2) if the total unencumbered value of the assets of 1st defendant and the 2nd defendant exceeds HK$12,000,000, the 1st defendant and/or the 2nd defendant may remove any of those of those assets from Hong Kong or may dispose of or deal with them so long as the total unencumbered value of their assets in Hong Kong remains above HK$12,000,000.
58. For effective monitoring of compliance, I give the ancillary disclosure order against the 1st and the 2nd defendants in the usual terms as sought under §§5-6 of the draft order annexed to the plaintiff’s summons.
59. For the exception to this order, I give an order in terms as sought under §§8-10 of the draft order annexed to the plaintiff’s summons save that under §8, the allowance for ordinary living expenses for the 1st defendant shall be HK$2,000 per week, and that for the ordinary and proper business expenses for the 2nd defendant shall be HK$5,000 per week.
60. I also give an order in the usual terms concerning the effect of the order as sought under §§11 to 15 of the draft order annexed to the plaintiff’s summons.
61. The above order is given upon the undertakings of the plaintiff set out in Schedule 2 to the draft order annexed to the plaintiff’s summons. The above order shall remain in force up to the trial of this action or further order of the court.
62. As for the Bankers Trust order, I give the following order (in line with the terms sought):
(1) HSBC do disclose to the plaintiff, and the plaintiff be at liberty by themselves and/or their legal advisers and/or their forensic accountants upon one day’s notice to inspect and take copies of all entries in all of the records used and kept in the ordinary course of business by HSBC relating to:
(a) All account opening forms, application forms, indemnities, counter-indemnities and mandates in whatever form in respect of the bank account with the account number of 611-031956-XXX held with HSBC by the 1st defendant (“D1 Account”);
(b) Details and/or records of all transactions in the D1 Account including, without limitation, bank statements, bank vouchers, forms, instructions, transaction advices, cheques and correspondence between HSBC and any person or entity involved in the aforesaid transactions from 21 April 2020 to the date of this order.
(2) HSBC do disclose to the plaintiff, and the plaintiff be at liberty by themselves and/or their legal advisers and/or their forensic accountants upon one day’s notice to inspect and take copies of all entries in all of the records used and kept in the ordinary course of business by HSBC relating to: -
(a) Details and/or records of all transactions in the bank account with the account number of 124-333881-XXX held with HSBC by the 2nd defendant (“D2 Account”), including, without limitation, bank statements, bank vouchers, forms, instructions, transaction advices, cheques and correspondence between HSBC and any person or entity involved in the aforesaid transactions from 21 April 2020 to 23 December 2021.
(3) HSBC do comply with the paragraphs (1) and (2) above within 7 days from the service of this order on it or such time may be extended by agreement between the plaintiff and HSBC in writing.
(4) The plaintiff shall not use information and documents obtained as a result of this order except for the purpose of investigating, commencing and/or pursuing civil proceedings in Hong Kong against the 1st defendant, the 2nd defendant or persons or entities implicated in any wrongdoing revealed by such information.
63. The above order is given upon the plaintiff’s undertaking that (i) he will pay on an indemnity basis all the reasonable costs and expenses of HSBC incurred as a result of and in compliance with the order; and (ii) if the court later finds that the order has caused loss to HSBC and decides that HSBC should be compensated for such loss, he will comply with any order that the court may make.
COSTS
64. Whilst the plaintiff fails in the application for the proprietary part of the application for injunction, he substantially succeeds in the mareva part and the rest of the application. I make a nisi order that the costs of the plaintiff’s summons shall be his costs in the cause and the costs of his application for the disclosure order against HSBC, as a matter between him and the 1st and the 2nd defendants, are reserved. In the absence of application in 14 days to vary, the nisi costs order shall become absolute without further order.
| |
( Simon Leung )
Deputy High Court Judge
|
Ms Jacquelyn Ng, instructed by Hastings & Co, for the plaintiff
Mr Kent Tam, of Kent Tam & Co, for the 1st and 2nd defendants
|