LIANG YONGXIAO v. HANG SENG BANK LTD

DCMP 3041/2020

[2020] HKDC 1195

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3041 OF 2020

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DECISION

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1.  On 21 September 2020, the plaintiff issued an Originating Summons applying for a Norwich Pharmacal discovery order against the defendant (“the Bank”).

2.  The Originating Summons and the supporting affirmation of the plaintiff filed on 21 September 2020 (“the Affirmation”) was duly served to the Bank.  By letter dated 24 September 2020, the Bank asked that there be certain revisions to be made to the draft order and stated that if those revisions were agreeable, it would adopt a neutral stance and would not attend its hearing.  The revisions were agreed to by the plaintiff and have been incorporated to the draft order.

3.  In view of the latest public health situation, this court directed on a nisi basis that this Originating Summons be disposed of on paper without an oral hearing, which the plaintiff agreed.  The plaintiff lodged its written submissions as directed.  The Bank did not lodge any.  This is the court’s decision after having read and considered all the papers including the plaintiff’s written submissions and the Bank’s said letter.

Legal principles

4.  The applicable principles are well settled.  Before a Norwich Pharmacal order is made, the court must bear in mind the following:-

“(1) There must be cogent and compelling evidence to demonstrate that serious tortious or wrongful activities have taken place. And where fraud or similar serious allegations are made, the degree of proof must correspondingly be high: see Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at p.586C-H. All the more so when the alleged wrongdoer is not and will not likely be before the court.

(2) It must also be clearly demonstrated that the order will or will very likely reap substantial and worthwhile benefits for the plaintiff.

(3) The discovery sought must not be unduly wide.  There is no entitlement to general discovery (by general discovery is meant discovery in the Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882-83) LR 11 QBD 55 sense) …  This is not to say the discovery orders cannot be wide; what is important is that the discovery, whether wide or narrow, is necessary.”

(per Ma J (as he then was) in A Co v B Co [2002] 3 HKLRD 111 at para 13)

The plaintiff’s case and discussion

5.  This is unfortunately yet another case of fraud.  In the Affirmation, the plaintiff deposed to the following.

6.  The plaintiff emigrated from China to South Africa in 1997.  She worked there as a cook.

7.  On 8 January 2019, she received a call from a female who claimed to be a staff of UPS International Delivery.  She claimed that a package sent from South Africa under the plaintiff’s name was seized by the Mainland Police, that there were 24 ATM cards found inside, one of which was issued to the plaintiff which was involved in money laundering in the sum of US$200,000.  The purported staff of UPS then asked the plaintiff to call a number said to be that of Beijing Chaoyang Public Security Bureau.

8.  Extremely worried and at a panic, the plaintiff called that number and talked to a male who claimed to be the officer responsible for investigation.  The plaintiff’s call was then transferred to another male who claimed to be the prosecutor of the PRC Supreme People’s Procuratorate.  That man further claimed that a warrant had been issued against the plaintiff and bank accounts under her name would soon be frozen.  Eventually, the man persuaded the plaintiff to remit all her monies to a bank account no. 789382710888 in the Bank held in the name of one CHEN Yong Ping (respectively “the Account” and “Chen”).  It was represented to the plaintiff that Chen was an officer of ICAC in Hong Kong who would act as a third party to screen the plaintiff’s financial means.  A document purportedly certifying Chen as such an ICAC officer and the Account being an official ICAC bank account was sent to the plaintiff (“the Fake Certificate”).

9.  Unsuspecting that it was all a fraudulent scheme, the plaintiff transferred US$31,574.58 from her South Africa First National Bank account no. 62278218435 to the Account on the same day.

10.  The next day, the plaintiff mentioned this to her family members who told her that it might be a fraud.  She then called the Hong Kong ICAC and discovered that it was indeed a fraud.  She then reported the matter to the Hong Kong Police.

11.  The above factual matters are supported by documentary evidence which have been exhibited to the Affirmation, including a payment confirmation issued by the plaintiff’s bank confirming that she had made the above bank transfer of US$31,574.58 to the Account on 8 January 2019, the Fake Certificate the plaintiff received as aforesaid and a Police Statement made by the plaintiff on 2 January 2020 while she was in Hong Kong.

12.  Based on the contents of the Affirmation and the said documentary evidence, I am satisfied that there are cogent and compelling evidence to demonstrate that fraud had been committed against the plaintiff and that the Bank had innocently been caught up with it by receiving and holding the said US$31,574.58 in the Account. Evidently, the plaintiff knows little about Chen.  I am satisfied that the discovery sought will reap substantial benefits for the plaintiff by providing sufficient information for her to commence proceedings to recover the sum from Chen, and if necessary, to trace the whereabouts of the same.

13.  I am also satisfied that the ambit of the discovery order now sought is not unduly wide. This is also confirmed by the fact that the Bank had made no adverse comments in this regard in its said letter.

Disposal

14.  In the premises, I will make an order in terms of the draft order submitted by the plaintiff with some minor amendments to its wording.  I will make no order as to the costs of the Originating Summons.