AICI TAN v. ZHU YUAN MU GYXY TRADE LTD AND OTHERS

DCCJ 2078/2022

[2022] HKDC 909

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2078 OF 2022

________________________

________________________

________________________

REASONS FOR DECISION

________________________

1.  By summons dated 19 July 2022 (the “Summons”), the Plaintiff applies for non-party discovery against the Hongkong and Shanghai Banking Corporation Limited (“HSBC”)  and Bank of China (Hong Kong)  Limited (“BOC”, and together with HSBC, the “Banks”)  for disclosure of the banker’s records in relation to 5 bank accounts (2 maintained with HSBC, 3 with BOC), pursuant to s 21 of the Evidence Ordinance (Cap 8).

2.  HSBC adopts a neutral stance to the Summons.  BOC is also neutral as a matter of principle but provided helpful comments on the precise terms of the order through its solicitor’s letter.  I excused the Banks from attending the hearing before me.

3.  Upon hearing Mr Edward Chin, counsel for the Plaintiff, I made an order in terms of the draft order provided to me (substantively reflecting BOC’s comments)  with minor amendments.  These are my reasons.

Background facts

4.  This is yet another fraudulent scheme conducted online.  The details are comprehensively set out in the 2^nd affirmation of the Plaintiff which I have considered in full, and a brief recital will be sufficient for present purposes.

5.  The Plaintiff was born in Mainland China but she moved to live in the United States in 2008 with her family.  She is now an American citizen.

6.  In March 2020, the Plaintiff became acquainted on Facebook with a complete stranger who claimed himself to be one Law Yin Wing (“Law”). Over time the Plaintiff came to repose trust and confidence in Law (although they have never physically met).

7.  In April 2020, Law told the Plaintiff that he had reliable investment information and the Plaintiff should take part in it.  In due course, as directed by Law and under various false representations and excuses, the Plaintiff made 6 transfers to various accounts totaling US$225,700 as follows:

Date	Amount (US$)	Destination account
8 April 2020	20,000	The 1st Defendant’s account at BOC (no: 01289120095969)
21 April 2020	46,000	The 2nd Defendant’s account at BOC (no: 01280620089228)
27 April 2020	60,000
6 May 2020	56,700	The 3rd Defendant’s account at HSBC (no: 004691080626838)
19 May 2020	32,000	The 4th Defendant’s account at HSBC (no: 004691080501838)
27 May 2020	11,000	The 5th Defendant’s account at BOC (no: 01266320053741)

8.  The Plaintiff subsequently realised that she had been defrauded when Law completely vanished.  The Plaintiff also discovered that the photograph that Law had earlier sent her on Facebook (claiming to be his own photograph)  was in fact a Hong Kong television actor.

9.  Reports were then made to the Hong Kong police, who informed the Plaintiff that part of the transferred funds have already been moved onto certain 2^nd layer recipients (being the 6^th to 8^th Defendants).

10.  I should add that the Plaintiff has obtained a Mareva injunction against the 2^nd to 4^th Defendants.  There was also a Mareva injunction originally in place against the 1^st and 5^th Defendants, but that was discharged in view of the fact that their accounts only had a nominal credit balance (a disclosure order was made against the Banks on 21 June 2022 by H H Judge M K Liu but only in relation to the current credit balance of the 1^st to 5^th Defendants’ accounts).

Legal principles

11.  The applicable legal principles are well-established.  They are set out in CTO (HK)  Ltd v Li Man Chiu [2002] 2 HKLRD 875 at paras 10-13 and Tiger Resort Asia Ltd v Kazuo Okada [2018] HKCFI 472 at paras 28-30, and I do not intend to repeat them. 

Analysis

12.  It is plain that the Plaintiff is entitled to make a proprietary claim in relation to the funds that she transferred away as a consequence of the fraudulent scheme.

13.  I am satisfied that the banker’s records which the Plaintiff seeks to inspect contain material relevant to her claim.  They are indeed highly germane to the issues of fund flow and the identities of the parties involved. There is a real prospect that the information will lead to the location or preservation of assets to which the Plaintiff is making a proprietary claim.

14.  I am also satisfied that the scope of disclosure is not unduly excessive.  Essentially the Plaintiff seeks inspection of bank documents to enable her to identify and trace the whereabouts of her funds.

15.  I have taken into account the privacy of the account holders and have exercised caution in this regard.  Balancing all factors, I am satisfied that a disclosure order ought to be made in favour of the Plaintiff, and the Banks should get costs of this application and for compliance with the order on an indemnity basis.

16.  I should finally record that, since the 1^st and 5^th Defendants are not within the jurisdiction, they have not yet been served with the Amended Writ of Summons herein nor the Summons (although the Plaintiff has attempted to notify them of this hearing by email).  In this regard, Mr Chin properly accepted that this hearing is to be regarded as an ex parte application against them.