SVI PUBLIC CO LTD v. BOGUAN TRADE CO., LTD

DCCJ 3231/2018

[2018] HKDC 906

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3231 OF 2018

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DECISION

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1.  On 24 July 2018, the plaintiff took out an inter partes summons (“the summons”) to seek a Mareva injunction against the defendant. Having read the evidence adduced by the plaintiff, I am satisfied that the writ of summons herein, the summons, the affirmation in support of the summons (“the supporting affirmation”), and other documents related to this application have been duly served on the defendant.

The facts

2.  I would first set out the essential facts deposed in the supporting affirmation.

3.  The plaintiff is a company limited incorporated in Thailand and is a listed company in the Stock Exchange in Thailand.  It is an electronic manufacturing services company providing turnkey electronics.  It has business with a company in Mainland China, which is Nanjing AH Electronic Science & Technology Co. Ltd. (“Nanjing AH”).  Nanjing AH would supply goods to the plaintiff from time to time.

4.  From June 2017 to November 2017, the plaintiff has purchased various goods from Nanjing AH.  As a result of these purchases, the total amount of the purchase price payable by the plaintiff to Nanjing AH is USD 94,070.

5.  On or about 2 February 2018, the plaintiff received an email (“the Email”) from an email account (“the Email Account”).  On the face of it, the Email was from Nanjing AH, requesting the plaintiff to pay the purchase price of USD 94,070 by transferring the sum to a bank account in Hong Kong (“the Bank Account”).  The holder of the Bank Account is the defendant.  On or about March 2018, under the belief that the payment request was really from Nanjing AH, the plaintiff transferred USD 94,070 to the Bank Account (“the transfer”).

6.  On or about 22 March 2018, the plaintiff was informed by Nanjing AH that Nanjing AH had not yet received the payment of the purchase price of USD 94,070.  Subsequently, the plaintiff discovered that the Email Account was not an account used by Nanjing AH.  The plaintiff realized that they had been defrauded.

7.  On or about 10 April 2018, the plaintiff made a report to the Hong Kong Police.  On or about 11 June 2018, the Hong Kong Police informed the plaintiff by email that their complaint was under investigation.  The Hong Kong Police also informed the plaintiff that the Bank Account had been frozen with a remaining balance of USD 155,285.31 therein.  The Hong Kong Police told the plaintiff that they might apply for a civil injunction, and if there was no civil claim against the money in the Bank Account, the money might be confiscated by the HKSAR Government.

Analysis

8.  In order to obtain a Mareva injunction, a plaintiff has to establish:-

(1)  that he has a good arguable case on a substantive claim over which the court has jurisdiction;

(2)  there are assets within the jurisdiction;

(3)  the balance of convenience is in favour of grant; and

(4)  there is a real risk of dissipation of assets, or removal of assets from the jurisdiction, which would render the plaintiff’s judgment of no effect.

See Hong Kong Civil Procedure 2018, Volume 1, §29/1/65

9.  Based upon the evidence now available, I am satisfied that the plaintiff has demonstrated a good arguable case against the defendant.  The plaintiff may argue that the defendant has to return the USD 94,070 to the plaintiff on the ground of unjust enrichment.  Obviously, as a result of the transfer, the defendant was enriched at the plaintiff’s expense.  The defendant has not provided any consideration in support of the transfer.  Further the Hong Kong Police’s investigation and intervention (ie freezing the Bank Account) shows that the transfer might be procured by some unlawful activities.  All these are factors in support of the unjust element.

10.  There are USD 155,285.31 in the Bank Account.  No doubt there are assets in Hong Kong which can be frozen by an injunction granted by this court.

11.  The Hong Kong Police’s investigation and intervention is evidence showing that the transfer might well be procured by some unlawful activities. The defendant may have taken part in these activities.  In the circumstances, I take the view that if no injunction is granted, there is a real risk that the judgment obtained by the plaintiff would go unsatisfied by reason of the disposal by the defendant of their assets.

12.  By reason of the real risk of dissipation of assets mentioned above, if there is no injunction freezing USD 94,070 in the Bank Account, any final judgment obtained by the plaintiff in these proceedings may well be an empty judgment. On the other hand, there is no evidence showing that the defendant would suffer any irreparable damage if the injunction sought is granted.  I am satisfied that the balance of convenience is in favour of granting the injunction.

Disposition

13.  I am satisfied that the plaintiff is entitled to have the injunction sought in the summons.  The plaintiff only seeks to freeze the money in the Bank Account up to the value of USD 94,070.  This is appropriate.  The plaintiff also seeks a costs order that costs of this application be the plaintiff’s costs in the cause, to be taxed if not agreed.  I would allow this, but I would add a certificate for counsel.

14.  I make an order in terms of the draft order annexed to the summons, with the addition that there be a certificate for counsel for this hearing. The injunction will remain in force against the defendant until the conclusion of the trial herein or a further order made by the court in these proceedings.

15.  I thank counsel for the assistance rendered to this court.