DITRON S.R.L. v. HK KUN TRADING LTD

DCCJ 4232/2020

[2020] HKDC 1107

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4232 OF 2020

--------------------------------

--------------------------------

---------------------

DECISION

---------------------

A.     INTRODUCTION

1.  This is yet another case concerning email fraud.  The plaintiff is the victim of the fraud. 

2.  There are two applications before me today, namely:-

(a)     the plaintiff’s application for default judgment against the defendant under Order 19 Rule 7 of the Rules of the District Court (Cap 336H) by way of summons filed on 7 September 2020 (“the Default Judgment Application”); and

(b)     the plaintiff’s application for discovery against the defendant and the Bank of China (Hong Kong) Limited (“BOC”) by way of summons filed on 17 November 2020 (“the Discovery Application”).

3.  At the beginning of the hearing, I indicated to Mr Lee of the plaintiff’s solicitors that the Default Judgment Application was taken out prematurely, as the time for the defendant to file the defence had not yet expired by then. 

4.  As a result, Mr Lee indicated to me that the plaintiff would like to withdraw the Default Judgment Application.  I accordingly granted leave to the plaintiff to withdraw the summons filed on 7 September 2020.  I also made an order that there should be no order as to costs in relation to the Default Judgment Application.

5.  I now proceed to deal with the Discovery Application.  In support of the application, the plaintiff relies on the following affirmations:-

(a)     Affirmation of Lee Ka Ming filed on 17 November 2020;

(b)     2^nd Affirmation of Lee Ka Ming filed on 17 November 2020; and

(c)     3^rd Affirmation of Lee Ka Ming filed on 23 November 2020.

B.     SERVICE

6.  The defendant is absent at today’s hearing. 

7.  According to the Affirmation of Lau Ho Lam filed on 4 September 2020, the Writ of Summons, with the Statement of Claim endorsed thereon, was served on the defendant on 17 August 2020.

8.  According to the 2^nd Affirmation of Lau Ho Lam filed on 20 November 2020, the summons filed on 17 November 2020 for the Discovery Application, the Affirmation of Lee Ka Ming and the 2^nd Affirmation of Lee Ka Ming were all sent to the defendant by ordinary post on 18 November 2020.  The said documents are deemed to be delivered to the defendant on 20 November 2020 pursuant to Practice Direction 19.2.  As there was insufficient notice to the defendant (less than 2 clear days before this hearing), Mr Lee asked for an order that the time for service of the summons on the defendant be abridged.  As the defendant should have received notice of today’s hearing on 20 November 2020, and that the defendant has actually not taken part in or responded to the present action all along, I granted an order for abridgement of time for service of the summons. 

9.  By the letter issued by its solicitors dated 19 November 2020, BOC indicated that it would adopt a neutral stance to the Discovery Application.  In the said letter, BOC had provided some comments in relation to the order sought.  BOC also sought to be excused from this hearing.

10.  Accordingly, I proceed to hear the application in the absence of the defendant and BOC.

C.     THE DISCOVERY APPLICATION

11.  The plaintiff’s case, as pleaded in the Statement of Claim and supported by the Affirmation of Lee Ka Ming and the 2^nd Affirmation of Lee Ka Ming, can be summarized as follows:-

(a)     The plaintiff is an Italian company.  At all material times, it had business dealings with a Shenzhen company called Leabon Industry Technology Limited (“Leabon”) for the supply of key cards. 

(b)     The defendant is a limited company incorporated on 19 September 2019 under the laws of Hong Kong.  The defendant has maintained a bank account with the Bank of China (Hong Kong) Limited (account number: 012-878-2-013672-2) (“the Defendant’s Bank Account”).

(c)     The plaintiff has never had any business, commercial or other dealing with the defendant.

(d)     On or around 20 May 2020 (Italy time), the plaintiff received an email from one Michael (using the email address michael@leabon-techonlogy.com) purportedly on behalf of Leabon, claiming that Leabon was switching to a subsidiary bank account, namely the Defendant’s Bank Account, and directed the plaintiff to make payment to the Defendant’s Bank Account to settle the trade debt payable to Leabon.

(e)     The plaintiff, under the impression that the email was genuine, transferred a sum of US$245,089.59 by telegraphic transfer from the plaintiff’s bank account to the Defendant’s Bank Account on or around 26 May 2020 (Italy time).

(f)     It was subsequently transpired that the defendant is not a subsidiary of Leabon. In fact, Leabon confirmed that it has no relationship with the defendant and the above email was not sent by Leabon.

(g)     The plaintiff has reported the incident to the Italian police and the Hong Kong police.

12.  I am satisfied that there is cogent evidence showing that serious fraud may have taken place.  I am also satisfied that the discovery order sought is appropriate and necessary to facilitate the tracing and recovery of the money involved.  I also note that BOC has no objection to the order sought against it, subject to some comments made in correspondence. 

13.  In the premises, I make an order in terms of the Summons, subject to some revisions I have made in the hearing.