SWIRE ENERGY SERVICES SDN. BHD v. THE HONGKONG AND SHANGHAI BANKING CORPORATION LTD

HCMP 543/2025

[2025] HKCFI 2797

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 543 OF 2025

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DECISION

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Introduction and Background Facts

1.  By Summons dated 2 May 2025 (“the Summon”) the Plaintiff (“P”) seeks against the Defendant (“the Bank”): (1) orders for disclosure in terms of the Summons under the court’s inherent jurisdiction to grant Norwich Pharmacal relief; and (2) continuation of the gagging order granted by this Court on 2 May 2025 (“the Gagging Order”) until further order. An Affirmation of Alan Robert Robson is filed on behalf of P in support of the Summons (“Supporting Affirmation”).

2.  P, is a company incorporated in Malaysia. Essentially, it is P’s case that Ms Tan, the Head of Finance for both it and another related company was tricked by persons holding themselves out as their director and a partner of the Singapore office of White & Case LLP into remitting P’s funds into the account of Zgui Limited (“Zgui”) and other accounts for the alleged purpose of incorporating a company purportedly to be a subsidiary of P.

3.  On 3 December 2024, P was fraudulently induced to remitting a total amount of USD397,400 in two tranches of USD199,800 and USD197,600 (“the Sums”) to an account of Zgui maintained with the Bank (“Zgui’s Account”).

4.  By the Summons, P seeks documents relating to the receipt of the Sums from P’s account in Zgui’s Account, all forms of identification and references provided in support of the opening of accounts held in the name of Zgui with the Bank, the names and addresses and all contact details of all signatories of these accounts, the current balances in these accounts and their bank statements from 3 December 2024 to date of the order.

5.  The Bank has been served inter alia the Summons and the Supporting Affirmation. Through correspondence with P’s solicitors, the Bank has indicated that they adopt a neutral stance to the Summons. Their comments have now been incorporated into a Draft Order submitted to me by Ms Cheng, a solicitor, who appeared on behalf of P. The Bank has not appeared today.

Applicable principles

6.  The applicable principles for Norwich Pharmacal relief are well-settled. It is not a usual order and will not be lightly granted in the absence of powerful factors:

(1)  It is made against an innocent party whose only involvement is to become mixed up in the tortious or wrongful activities of others;

(2)  The wrongdoing exists only on the part of a person or persons against whom no relief may be sought at the stage of the application and against whom there is probably insufficient evidence to found an action;

(3)  There will usually be a legal relationship between the innocent person against whom a discovery order is sought and the alleged wrongdoer, and the relationship may involve strict duties to be observed on the innocent party’s part. Any discovery to be made will involve a breach of confidentiality and may expose the innocent party to civil liability and possibly even criminal liability; and

(4)  The court must accordingly balance the competing interests of the victim of the alleged wrongdoing and an innocent party caught up in the wrongdoing.

See A Co v B Co [2002] 3 HKLRD 111 at §12 per Ma J (as he then was).

7.  In A Co v B Co at §13, the main requirements for Norwich Pharmacal relief were set out:

(1)  There must be cogent and compelling evidence to demonstrate that serious tortious or wrongful activities have taken place (where fraud or similar serious allegations are made, the degree of proof must correspondingly be high);

(2)  It must be clearly demonstrated that the order will or will very likely reap substantial and worthwhile benefits for the plaintiff, and where a tracing claim is likely to be made there must be a serious possibility that the discovery sought will either allow the plaintiff to preserve what may well be his assets or realistically lead to the discovery of such assets; and

(3)  The discovery sought must not be unduly wide, so an order must be specific and also restricted to those documents or those classes of documents that are necessary to enable the plaintiff to preserve or discover assets.

Analysis and Orders

8.  Applying the above legal principles to the facts of the present case, I am satisfied that the orders sought in the Draft Order (as amended by me) should be granted against the Bank.

9.  Firstly, from the Supporting Affirmation, I am satisfied that there is cogent and compelling evidence that serious tortious or wrongful activities have taken place. The WhatsApp and email communications between the imposters and Ms Tan, the payment and remittance forms as well as the police reports made on behalf of P have been exhibited in the Supporting Affirmation.

10.  Secondly, I am satisfied that there is a real prospect that the requested information would reap substantial and worthwhile benefit to P and enable it to preserve or trace its monies, identify and take legal action against any wrongdoer(s).

11.  Thirdly, I am satisfied that the discovery sought is specifically defined. The Draft Order provides for disclosure of transaction details from 3 December 2024 to the date of the order and is therefore not unduly wide and restricted to documents necessary to allow P to preserve or discover what may well be its assets. I have also taken into account the neutral stance adopted by the Bank and that its comments have now been incorporated into the Draft Order.

12.  Having balanced the competing interest of the victim and the innocent party (the Bank) caught up in the wrongdoing, and mindful that the power to order disclosure should be exercised with great caution, I would now make an order in terms of the Draft Order (as amended by me).

13.  In granting the Gagging Order, I was satisfied that a strong prima facie case was made out for making the order. Given that if the wrongdoer(s) was/were forewarned that action was about to be taken or was being taken against him/them by P, there are grounds to believe that steps may be taken by him/them to frustrate any investigation or claim by P. However, as gagging orders are exceptional remedies and has the effect of depriving the party affected the opportunity to investigate facts in circumstances where that party may incur personal liability which is a serious intrusion into what would otherwise be a party’s basis right (see A Co v B Co, §40), it should be made for only a limited duration. In the present case, I believe that 6 months should be sufficient for the necessary investigation and steps to be taken by P against any wrongdoer(s) identified. I therefore will continue the Gagging Order until 19 December 2025 or further order of the court.