BRY-AIR (SHANGHAI) AIR TREATMENT EQUIPMENT CO. LTD v. HONG KONG YULONG INDUSTRIES LTD

HCA 2133/2025

[2025] HKCFI 5975

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2133 OF 2025

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D E C I S I O N

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1.  This is yet another case where the plaintiff claims to be a victim of “email fraud” which caused the Plaintiff (“P”) to transfer a sum of USD476,424 (“the Sum”) into the bank account of the Defendant (“D”) on 9 September 2025.

2.  This matter first came before me by way of an ex parte application made by P on 14 November 2025 seeking a Mareva injunction, proprietary injunction and various disclosure orders. I was satisfied that the ex parte application was justified, not on grounds of extreme urgency, but because of the need for secrecy. Having read the affirmation and skeleton submissions lodged by P, I was satisfied that there was a good arguable case that P, as a victim of fraud, had a restitutionary claim based on unjust enrichment for the Sum against D. However, given the transfer of the Sum on 9 September 2025, and despite the report to the Hong Kong Police on 20 September 2025, no letter of no consent has been issued, I was not satisfied that P demonstrated by way of reasonable evidence to show a serious issue to be tried that P’s assets or its traceable substitute was being held or under the control of D. See Welly Grace Limited & Ors v Keung Yee Man & Ors [2023] HKCFI 3082 at §§30 and 32 per Recorder Eugene Fung SC (as he then was). Indeed, in the indorsement of claim to the Draft Writ (which has now been issued), no proprietary claim to the Sum was made and the only relief sought was repayment of the sum of USD476,424. Furthermore, in the skeleton filed in support of the ex parte application, it was acknowledged that P cannot confirm if the Sum has been dissipated. In those circumstances, I refused to grant a proprietary injunction and only granted a Mareva injunction on an ex parte basis (“the Mareva Injunction”). I also refused to grant any ancillary disclosure order as it is the usual practice of the court for the application to be dealt with inter partes: see C v D1 & Anor [2021] HKCFI 228 at §31(1) per Linda Chan J.

3.  Today is the return date of the Mareva Injunction and the first hearing of the Inter Parte Summons dated 17 November 2025 (“the Inter Parte Summons”). Given that I am satisfied from the affirmation of service filed by P that D has been properly served the Inter Parte Summons, I am of the view that it is expedient to proceed notwithstanding the absence of D at today’s hearing.

4.  Mr Cheuk, solicitor for P (who also appeared before me at the ex parte hearing) seeks the continuation of the Mareva Injunction until trial or further order and the following disclosure orders:

(1)  D does inform P within 3 days after this Order has been served on it: (a) the location of the Sum paid by P into D’s Bank account maintained with China Construction Bank (Asia) Corporation Limited with account number 846210338211; and (b) if the Sum (or any part thereof) has been disposed of or transferred to third party/parties, full details of what has become of them and the location of the Sum (or such substitute/traceable proceeds), and to whom, to where, and under what circumstances the Sum (or any part thereof) were disposed or transferred to such third party/parties. D may be entitled to refuse to provide some or all of this information on the grounds that it may incriminate it; and

(2)  D does inform P within 3 days after this Order has been served on it of all of its assets of an individual value of HK$50,000 or more in Hong Kong, whether in its own name or not, and whether solely or joint owned, giving the value, location and details of all such assets. D may be entitled to refuse to provide some or all of this information on grounds that it may incriminate it.

5.  Given that I have refused to grant proprietary relief, I cannot see how D should be required to disclose the information sought in (1) above relating to the Sum. I do not accept the submissions made in P’s Skeleton Submission at paragraph 10 that P’s claim is proprietary and that “the Court has jurisdiction to make disclosure order in aid of the Mareva Injunction so as to assist P to trace and take steps to preserve the Sum which may already be in the hands of third parties”. As mentioned above I do not accept a proprietary claim has been made and certainly no tracing claim or remedies has been pleaded in the Writ and Indorsement of Claim now issued.

6.  As the Court of Appeal held in Pacific King Shipping Holdings Pte Ltd v Huang Ziqiang [2015] 1 HKLRD 830 at §§32 and 36, absent any evidence of abuse such as non-compliance with the Mareva injunction, the court will normally refuse to order further disclosure in addition to the standard disclosure (i.e. that appended to PD11.2). See also more recently, Realord Group Holdings Limited & Anor v Win Dynamic Limited & Anor [2025] HKCFI 1939 at §§48-49 per Cheng J.

7.  The case of Yau Chiu Wah v Gold Chief Investment Ltd & Anor [2002] 2 HKLRD 832 cited by Mr Cheuk is distinguishable as the defendant had filed affidavit evidence purporting to give discovery which the learned judge found was unsatisfactory (see §§21-22). CTO (HK) Ltd v Li Man Chiu & Others [2002] 2 HKLRD 875 also cited by Mr Cheuk also does not assist P as in that case the plaintiff did claim the defendants are constructive trustees and sought an account and tracing remedies (see §7) and the defendants had filed affirmation regarding their assets (see §9).

8.  For the above reasons, I see no reason to depart from the usual practice. I will order the continuation of the Mareva Injunction until trial or further order (whichever is earlier) and the standard ancillary disclosure order against D.

9.  Accordingly, I make an order in terms of the Inter-Partes Summons as amended by me.