TOHKOH JUSHI CO LTD v. THE HONGKONG AND SHANGHAI BANKING CORPORATION LTD

HCMP 184/2018

[2018] HKCFI 656

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 184 OF 2018

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D E C I S I O N

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1.  In proceedings HCA 2014/2017, the applicant, a company incorporated in Japan, claims that a Japanese businessman fraudulently misrepresented to it that an order had been placed for the purchase of equipment, when in truth no such order had been placed. That had induced the applicant to pay sums in excess of 400 million Japanese yen, which is about HK$28 million, to another company in Japan, and those sums were eventually paid into the bank accounts in Hong Kong of two companies incorporated in Hong Kong. By this application for a Norwich Pharmacal order, the applicant applies for an order requiring the bank in which the two accounts are maintained to produce various documents relating to those accounts, so that it can discover whether the funds are still in those accounts, and if not, to whom they have been transferred.

2.  So far as I can tell, and Ms Jacqueline Chan for the applicant agrees, what is sought is a Norwich Pharmacal order in the standard form, though unusually perhaps, judgment has already been given, admittedly by default, against one of the two companies for the whole sum which the applicant claims to have been defrauded of.  The bank does not contest the application.    

3.  I am satisfied that the requirements for the making of a Norwich Pharmacal order have been met in this case. There is cogent and compelling evidence which demonstrates that serious tortious conduct has taken place.  The order is very likely to reap substantial and worthwhile benefits for the applicant, in that it will be in a much better position to trace its funds.  And the order is drafted in such a way as to make the production sought no more than is reasonably necessary to assist the applicant in discovering the whereabouts of its funds.  I therefore make the order sought in paragraphs 1-6 of the originating summons, with the minor drafting amendments I have made to it and to the schedule to it.