LAI CHUNG LEUNG v. JHENG SHENG INTERNATIONAL CORPORATION

HCA 2184/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2184 OF 2008

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J U D G M E N T

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1.  May I say that on the evidence filed on the plaintiff’s behalf, it is quite clear that this was money paid under a mistake of fact. This is classically an action for money had and received. It ought to be returned to the plaintiff.

2.  So far as representations that are purportedly made on behalf of the defendant which seek to set up some sort of what I might describe as third-party dispute, there are two points to be made.  Firstly, there is no evidence that these lawyers act with the authority of the defendant company, and in any event, there is very little weight I can attach to it.  They could easily, if they were serious about this, have instructed Hong Kong solicitors to act on their behalf. They have not and, really, it is a case of my having nothing from the defendant and so I am content to put that aside.

3.  The plaintiff in this action is completely innocent, being a remittance agent, and there is nothing here to suggest that the plaintiff is involved in any sort of contractual dispute which might justify the money being held by the defendant, and so I will enter judgment under Order 14, r.1 for the sum of US$133,372 with interest thereon at the rate of 1 per cent per annum above prime rate from the date of Writ of Summons to today and thereafter at the judgment rate until payment.

4.  Then there should be a declaration in terms of paragraph 2 that the plaintiff is the sole and beneficial owner of this money and the defendant is not, and that the plaintiff is entitled to have the money refunded to him.  As to paragraph 3, until the full settlement of the Judgment of US$133,372, there will be an injunction restraining the Defendant from:-

(i) whether by itself or its agent , included but not limited to the Bank Sinpac HK Branch, claiming to be the beneficiary owner of the said US$133,372;

(ii) dissipation of the said US$133,372 or any part thereof still in its possession;

(iii) destroying payment receipts and documents relating to the said US$133,372;

(iv) subject to paragraph 3A of the summons, transferring out or otherwise dealing with the said US$133,372 from the said Bank Account being Bank Sinopac Hong Kong Branch (“the Bank Sinopac”) Account Number 90-008-0002199-9(USD).

(3A) an injunction that the Defendant shall forthwith whether by itself or by its agent, including but not limited to the Bank Sinopac HK Branch by taking such action or executing such document to cause to have the said amount of US$133,372 be refunded to the Plaintiff.

5.  That should be sufficient then as to paragraph 3(A) of the summons.  Once that is served on the bank, that would stand as sufficient authority for the bank to return the money to the plaintiff at the plaintiff’s direction.

6.  This judgment should stand as sufficient authority that the bank is to return the amount that they hold in that account, US$133,372, to the plaintiff.

7.  There will also be an order for costs of the action to be paid by the defendant on a party-and-party basis.