MCT ENTERPRISES LTD. (a company incorporated in British Columbia, Canada) AND ANOTHER v. BANK OF CHINA (HONG KONG) LTD AND ANOTHER

DCMP 1274/2020

[2020] HKDC 396

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1274 OF 2020

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D E C I S I O N

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1.  On 24 April 2020, I heard two ex parte applications made on notice against both BOC (the 1^st defendant) and BOComm (the 2^nd defendant) for a Norwich Pharmacal disclosure order and a gagging order.

2.  The underlying basis of the applications were that the plaintiffs were the victims of an email fraud.  The purpose of the applications was to facilitate the tracing and recovery of the monies fraudulently obtained.  I was satisfied that the requirements for a disclosure order and a gagging order were met.

3.  I granted the orders against BOC as its solicitors had confirmed the receipt of notice of the application and indicated that BOC maintained a neutral stance.

4.  There was however no response from BOComm.  The solicitors for the plaintiffs only gave notice of the application to BOComm on 21 April.  In the absence of any response from BOComm, I was of the view that BOComm had not been given sufficient time to properly respond to the application.  Having regard to the guidelines discussed in Asiya Asset Management v Dipper Trading Co Ltd [2019] 3 HKC 145 regarding the requirements of notice in this type of application, I therefore only granted the gagging order and ordered BOComm to disclose information on one specified account; but adjourned the balance of the application pending the issuance of the inter partes summons when the Registry re-opened.

5.  The inter partes summons was issued on 8 May 2020.  I was told that it was served on BOComm on 26 May.

6.  At the hearing today, BOComm was absent. I was informed by Mr Siu that after the ex parte hearing, the plaintiffs’ solicitors received from BOComm:

(i)  A letter dated 24 April 2020, which was faxed to the plaintiffs’ solicitors on 28 April.  In the letter, BOComm confirmed the receipt of the notice of the ex parte application, and stated that it had no objection to the terms of the draft order.  It further stated that it held a neutral position:

(ii)  A letter dated 4 May 2020.  In the letter, BOComm acknowledged the receipt of the sealed copy of the order dated 24 April.  It also provided information relating to a number of accounts, one of which was the account specified in the order of 24 April.  Enclosed with the letter were also copies of the documents relating to the accounts it disclosed.

7.  Mr Siu stated that in light of the information and documents that BOComm has provided to the plaintiffs, they only needed an order in terms of para [3] of the summons.

8.  Having regard to the matters mentioned above, I therefore granted an order in terms of the draft order with an amendment to para [2] to read as follows:

“There be no order as to the costs of the inter partes summons including costs reserved at the hearing on 24 April 2020 in respect of the ex parte application against the 2^nd defendant.”