LAI ZHANG XIAO ZHU, the executrix of the estate of CHANG VIVIAN WEI CHU, deceased v. CYBER GOLD & SILVER LTD

DCCJ 269/2019

[2025] HKDC 2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 269 OF 2019

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DECISION

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Introduction

1.  This is the Plaintiff’s application by summons for a summary order for account under Order 43, rule 1 of the Rules of the District Court, Cap 336H. The Plaintiff seeks inter alia for an order that the Defendant make a true and proper account of the credit balance standing the account specified in the summons as at 30 September 2018 in the sum of HK$ 2,148,464.47.

2.  At the present hearing, the Defendant was not represented and did not appear. The Plaintiff’s solicitors have filed two affirmations of service, stating that the Notice of Hearing, the Hearing Bundle and the Plaintiff’s Skeleton Submissions and Authorities had all been served to the Defendant. I am therefore satisfied that the Defendant is properly notified of the present hearing and I proceed in its absence.

Parties’ Pleaded Cases

3.  For some reason, the pleadings were not included in the Hearing Bundle. At the hearing, I have enquired with Mr Lau, Counsel for the Plaintiff. He submitted that, there is no need to go to the pleadings, but he has no objection to the court referring to them.

4.  I am of the view that, the scope of the present account taking exercise can only be ascertained with reference to the relief sought by the Plaintiff, which can only be done by reading the pleadings. That is especially so when the learned Master at the last hearing made the order for substantive hearing for an account to be taken upon considering the prayer of relief pleaded in the Plaintiff’s claim. The Plaintiff, in her affirmations, has also expressly referred to the averments made by the Defendant in its defence filed. Therefore, I find it necessary to first set out the parties’ respective pleaded cases.

5.  In the Re-Amended Statement of Claim dated 7 September 2023 (“RASOC”), the Plaintiff pleads that: -

(1)  The Plaintiff is the eldest daughter of Chang Vivian Wei Chu, the deceased (the “Deceased”) and the executrix of her estate. The Deceased passed away on 21 January 2019;

(2)  The Defendant is a company carrying on a brokerage business on the trade of precious metals. The Deceased maintained a trading account as particularised in the RASOC with the Defendant (the “Account”);

(3)  Under the client agreement between the Deceased and the Defendant or otherwise, the Defendant holds the money standing in credit in the Account on trust for the Deceased and/or the estate of the Deceased;

(4)  By way of an Enduring Power of Attorney made by the Deceased in favour of the Plaintiff dated 19 July 2016 (the “EPOA”), the Plaintiff is authorised to act as the attorney of the Deceased in managing her properties, including her interests in the Account. In August 2017, the Deceased was certified as mentally incapacitated; and on 17 August 2017, the registration of the EPOA was granted and took effect;

(5)  By a letter dated 19 September 2018 issued by the Plaintiff’s solicitors to the Defendant, the Plaintiff demanded the Defendant to inform her of the credit balance standing in the Account and to release such credit balance to the Plaintiff;

(6)  By a letter dated 28 September 2018 issued by the Defendant to the Plaintiff’s solicitors, the Defendant informed the Plaintiff that the credit balance standing in the Account as at 30 September 2018 is HK$ 2,148,464.47 (the “Account Balance”);

(7)  However, despite repeated demands, the Defendant has failed or refused to release the Account Balance to the Plaintiff;

(8)  Because of the Defendant’s breach of trust and/or breach of contract, the Plaintiff seeks inter alia the following relief: (1) a declaration that the Account Balance is and was held by the Defendant on behalf of the Deceased and/or her estate; (2) an account of the Account Balance; (3) The sum of HK$ 2,148,464.47 (the “Sum”) or any sum found due on taking of the account; (4) damages and/or equitable compensation with interest and costs.

6.  On 12 December 2023, the Defendant filed its Re-Amended Defence (“RAD”), which avers to the following: -

(1)  The Defendant is at all material times a wholly owned subsidiary of Peace Town Holding Limited (“PT Holding”), a limited company incorporated in Hong Kong;

(2)  Chou Si Kit James (“James”) is the second son of the late Chou Wai Man, the spouse of the Deceased. The Deceased was James’s stepmother;

(3)  Prior to their deaths, Chou Wai Man and the Deceased were shareholders of PT Holding and the Defendant. James was a director of the Defendant and operated the Defendant under the instructions of Chou Wai Man and the Deceased;

(4)  As of date, all the funds in the Account has been released and there is no longer any credit balance in the Account. Following the instructions of the Deceased, funds in the Account were remitted to the bank account of the Defendant’s holding company or other affiliated companies to ease cash flow problems.

The Plaintiff’s Application

7.  According to the Plaintiff, the present application is made by way of summons dated 27 December 2023 (the “Summons”) supported by 2^nd Affirmation of Lai Zhang Xiao Zhu filed on the same date (“2^nd Affirmation of LZXZ”) pursuant to Order 43, rule 1 of the Rules of the District Court, Cap 336H.

8.  In the 2^nd Affirmation of LZXZ, the Plaintiff stated the basis of her application which is that, the Defendant has the duty to account to the Deceased and/or her estate; and that “rendering of a proper, complete and accurate account by the Defendant is necessary for any investigation into the Defendant’s dealings with the Account Balance to enable the seeking of appropriate remedy and/or relief if it is revealed that the Defendant has wrongfully dealt with the Account Balance in breach of trust and/or contract”.

9.  On 7 February 2024, Master Maurice Lam made an order for the Defendant to produce a true and proper account of the credit balance standing in the Account which as at 30 September 2018 stands at HK$ 2,148,464.47. It was also ordered that, the account produced shall identify, from 30 September 2018 to the date of the order, the whereabouts of the Account Balance, all of the dealings with the same, and the income and profits made therefrom. There were also consequential directions made for the Plaintiff’s inspection and filing of objection to the account produced. In the case where the directions are complied with, the parties were given leave to proceed to a hearing for an account to be taken and the Defendant is to pay the Plaintiff such amount found due on the taking of account (if any). (the “7/2/2024 Order”)

10.  Following the 7/2/2024 Order, the Defendant filed the Affirmation of Chou Si Kit James on (“Affirmation of CSKJ”). In the Affirmation of CSKJ, James, being the sole director of the Defendant, produced a statement of the Account covering the period from 30 March 2021 to 20 April 2018 (the “Account Statement”), and stated that: -

(1)  Since the opening of the Account, the Deceased would direct the Defendant to settle rental payments and various expenses with the funds in the Account. The Deceased would also withdraw cash from the Account;

(2)  Further, the Deceased has directed James to inject cash (from the Account) to aid the cash flow problem of PT Holding when needed and that PT Holding has further channelled portion of those to its subsidiary companies;

(3)  As both the Financial Controller and the Chief Accountant of PT Holding (and the Defendant) have both passed away in March 2019 and May 2022 respectively, James has not been able to locate the accounting records;

(4)  The funds in the Account, other than those debit entries representing settlement of the Deceased’s expenses and cash withdrawals, all went to the account of PT Holding. The credit amount reflected in the Account Statement is correct, save that the Defendant has no cash flow to reimburse the Deceased.

11.  On 10 September 2024, the Plaintiff took out a subsequent summons (the “2^nd Summons”) accompanied by the 3^rd Affirmation of Lai Zhang Xiao Zhu (“3^rd Affirmation of LZXZ”), seeking an unless order to compel the Defendant to comply with the 7/2/2024 Order and an order to certify that the Account Balance be found due to the Plaintiff.

12.  In the 3^rd Affirmation of LZXZ, the Plaintiff stated that: -

(1)  The Defendant has failed to comply with the 7/2/2024 Order. The Affirmation of CSKJ falls short of being an account of the Account Balance and no supporting documents were provided as proof;

(2)  The Account Statement produced dated 29 March 2019 is not an account of the Account Balance. It does not show any transactions during the period specified in the 7/2/2024 Order, being from 30 September 2018 to 7 February 2024 (the “Relevant Period”);

(3)  As such, the Plaintiff has not been able to proceed with the taking of account exercise without a true and proper account being rendered by the Defendant.

13.  On 28 October 2024, Master Ross Li ordered that, unless the Defendant do by 4pm on 18 November 2024 file and serve on the Plaintiff a true and proper account in compliance of the 7/2/2024 Order, the Defendant be debarred from adducing further evidence on the taking of the account. (the “28/10/2024 Order”)

14.  According to the Plaintiff, the Defendant still did not produce a true and proper account of the Account Balance. On 16 May 2025, the Plaintiff took out a further summons seeking leave to fix a hearing for an account to be taken and for an order of payment of sums found due with interest (the “3^rd Summons”).

15.  On 5 June 2025, in absence of the Defendant, Master J. Chow fixed for the substantive hearing for an account to be taken, which brings us to the present hearing. (the “5/6/2025 Order”)

Order 43 Procedure

16.  Order 43 rule 1(1) and (3) of Rules of the District Court provides that: -

“(1) Where a writ is indorsed with a claim for an account or a claim which necessarily involves taking an account, the plaintiff may, at any time after the defendant has acknowledged service of the writ or after the time limited for acknowledging service, apply for an order under this rule.

(3) On the hearing of the application, the Court may, unless satisfied that there is some preliminary question to be tried, order that an account be taken and may also order that any amount certified on taking the account to be due to either party be paid to him within a time specified in the order.”

17.  The manner of taking account or making inquiry is governed by Order 43, rules 3 and 4 of the Rules of District Court, Cap 336H. In particular, where an account has been ordered to be taken, the accounting party must first make out his account and, unless the Court otherwise directs, verify it by an affidavit to which the account must be exhibited.

18.  Counsel for the Plaintiff has cited the Court of Final Appeal judgment of Libertarian Investments v. Hall (2013) 16 HKCFAR 681 which authoritatively explains the legal basis and principles relating to taking accounts and making inquiries. I set out the relevant paragraphs at paragraphs 166 to 175 as per Lord Millett NPJ: -

“166. There are traces in the arguments both here and below of the proposition that account and equitable compensation are alternative and inconsistent remedies and that a plaintiff must elect between them. It is only right to say at once that this is not the ground on which either court below ordered an account when the plaintiff asked for equitable compensation; but since the proposition is advanced from time to time it is appropriate to explain why it is mistaken.

167. It is often said that the primary remedy for breach of trust or fiduciary duty is an order for an account, but this is an abbreviated and potentially misleading statement of the true position. In the first place an account is not a remedy for wrong. Trustees and most fiduciaries are accounting parties, and their beneficiaries or principals do not have to prove that there has been a breach of trust or fiduciary duty in order to obtain an order for account. Once the trust or fiduciary relationship is established or conceded the beneficiary or principal is entitled to an account as of right. Although like all equitable remedies an order for an account is discretionary, in making the order the court is not granting a remedy for wrong but enforcing performance of an obligation.

168. In the second place an order for an account does not in itself provide the plaintiff with a remedy; it is merely the first step in a process which enables him to identify and quantify any deficit in the trust fund and seek the appropriate means by which it may be made good. Once the plaintiff has been provided with an account he can falsify and surcharge it. If the account discloses an unauthorised disbursement the plaintiff may falsify it, that is to say ask for the disbursement to be disallowed. This will produce a deficit which the defendant must make good, either in specie or in money. Where the defendant is ordered to make good the deficit by the payment of money, the award is sometimes described as the payment of equitable compensation; but it is not compensation for loss but restitutionary or restorative. The amount of the award is measured by the objective value of the property lost determined at the date when the account is taken and with the full benefit of hindsight.

169. But the plaintiff is not bound to ask for the disbursement to be disallowed. He is entitled to ask for an inquiry to discover what the defendant did with the trust money which he misappropriated and whether he dissipated it or invested it, and if he invested it whether he did so at a profit or a loss. If he dissipated it or invested it at a loss, the plaintiff will naturally have the disbursement disallowed and disclaim any interest in the property in which it was invested by treating it as bought with the defendant’s own money. If, however, the defendant invested the money at a profit, the plaintiff is not bound to ask for the disbursement to be disallowed. He can treat it as an authorised disbursement, treat the property in which it has been invested as acquired with trust money, and follow or trace the property and demand that it or its traceable proceeds be restored to the trust in specie.

170. If on the other hand the account is shown to be defective because it does not include property which the defendant in breach of his duty failed to obtain for the benefit of the trust, the plaintiff can surcharge the account by asking for it to be taken on the basis of “wilful default”, that is to say on the basis that the property should be treated as if the defendant had performed his duty and obtained it for the benefit of the trust. Since ex hypothesi the property has not been acquired, the defendant will be ordered to make good the deficiency by the payment of money, and in this case the payment of “equitable compensation” is akin to the payment of damages as compensation for loss.

171. In an appropriate case the defendant will be charged, not merely with the value of the property at the date when it ought to have been acquired or at the date when the account is taken, but at its highest intermediate value. This is on the footing either that the defendant was a trustee with power to sell the property or that he was a fiduciary who ought to have kept his principal informed and sought his instructions.

172. At every stage the plaintiff can elect whether or not to seek a further account or inquiry. The amount of any unauthorised disbursement is often established by evidence at the trial, so that the plaintiff does not need an account but can ask for an award of the appropriate amount of compensation. Or he may be content with a monetary award rather than attempt to follow or trace the money, in which case he will not ask for an inquiry as to what has become of the trust property. In short, he may elect not to call for an account or further inquiry if it is unnecessary or unlikely to be fruitful, though the court will always have the last word.

173. In the present case the trial judge ordered accounts and enquiries because he considered that the evidence was insufficient to enable him to quantify the amount of compensation to which the plaintiff was entitled to be determined with any degree of accuracy, and his decision was affirmed by the Court of Appeal. This was an exercise of the court’s discretion and as such is one which should not lightly be overturned. But the question is a procedural one and this court is in as a good a position as the trial judge to reach a decision.

174. I agree with Ribeiro PJ and for the reasons given by him that there was more evidence before the court than the courts below have given credit for, and that further accounts and enquiries are unlikely to be fruitful. After this time the number and cost of shares which the defendant ought have acquired and falsely said that he had acquired is little more than informed guesswork and the quality of the answer is unlikely to be improved by further inquiry. Where the absence of evidence is the consequence of the fiduciary’s own breach of duty the court is not without resource, for it can have resort to three principles. First, it may be able to take the fiduciary at his own word and use his falsehoods to establish the facts as if they were true even though they are known to be untrue. Secondly the court is entitled to make every assumption against the party whose conduct has deprived it of necessary evidence. And thirdly the court is entitled to be robust and do rough and ready justice without having to justify the amount of its award with any degree of precision.

175. In my judgment the failure of the courts below to consider whether further accounts and enquiries would be productive is in itself sufficient to enable this court to intervene and substitute its own order. I also agree that the court has sufficient material to justify the orders proposed.” [Emphasis added]

19.  At the hearing, I have referred Counsel for the Plaintiff to Man On Sum v. Man Ping Hei (unrep, HCA 352 of 2015, Date of Decision: 21 September 2016), where the Hon Chow J (as Chow JA then was) succinctly summarised the principles for deciding whether to make a summary order for account under Order 43: -

“11. First, “Order 43 is not appropriate where the parties are engaged in substantial disputes of fact which are fundamental to the manner in which any proposed account is to be taken. Such disputes of fact first need to be resolved by trial. The person conducting the account or inquiry would need guidance on how to resolve such fundamental factual disputes if the account or inquiry is to proceed smoothly. Such guidance could effectively only come after a trial judge has fully heard the parties and decided their fundamental disputes, not before”: see Kids World v XL Machine Ltd, HCA 125/2002 (18 September 2003), at paragraph 3 per Reyes J.

12. Second, Order 43 is not the appropriate avenue for seeking answers to interrogatories, or specific discovery, or clarification of accounts already rendered: see Kids World, ante, at paragraph 9 per Reyes J. As stated by Litton JA (as he then was) in Ho Lee Man v Wong Wai Kai [1993] 1 HKC 183 at 191F, the summary process under Order 43, rule 1 is not designed as an instrument for specific discovery.

13. Third, “Order 43 provides for the taking of an account which is a process of inquiry… Order 43 does not simply involve both parties setting out what each party proposes to be the proper account between themselves. The taking of an account essentially involves the Court (whether by a master or judge) vetting the accounts (including supporting oral and written evidence) produced by both parties with a view to arriving at an outstanding figure due from one party to another”: see Kids World, ante, at paragraph 11 per Reyes J.

14. Fourth, if there are some preliminary questions to be tried, it would be inappropriate to make a summary order for account: see Lei Chun Kin v Yip Teresita Pumares, DCCJ 892/2006 (11 April 2007), at paragraph 47 per H H Judge Marlene Ng. For this purpose, a “preliminary question” means a question which (i) might be relevant to the entitlement of the plaintiff concerned to an account as of right, or (2) concerns whether there might be any circumstances in which it would be appropriate for the court not to direct an account at that stage, or (3) relates to issues concerning the extent of the matters for which it might be appropriate for the defendant to account: see Aforge Finance SAS v HSBC Institutional Trust Services Ltd [2009] IEHC 565, at paragraph 4.3 per Clarke J.

15. Fifth, where the defendant has already provided an account and the issue is the adequacy of the account provided, such issue should, generally speaking, be regarded as a “preliminary question” to be tried and thus it would not be appropriate to make a summary order for account: see Holborow v Macdonald Rudder (a firm) [2001] WASCA 91; Aaronisle Pty Ltd v Thorpe & Anor [2005] WASC 87; and Tandor Pty Ltd v Australia Liquor Marketers (WA) Pty Ltd [2008] WASC 244.” [Emphasis added]

20.  With those principles in mind, I now turn to the Plaintiff’s application to proceed to an inquiry.

Analysis

21.  The present substantive hearing is fixed pursuant to the 5/6/2025 Order for taking of account. At the hearing, I have asked Mr Lau, appearing on behalf of the Plaintiff, what account is to be taken and what the purpose of the inquiry is. Mr Lau submits that, the account to be taken is that of the statement of the Account provided by the Defendant as at 30 September 2018. The Plaintiff is asking the Court at this hearing to certify the Account Balance remains in the Account and that the Defendant is liable to restore and pay the Sum to the Plaintiff. He also submits that, the Defendant’s liability to restore and pay the Sum is “established” by the 7/2/2024 Order.

22.  For the reasons set out below, I do not find it appropriate to certify any sum in this hearing for taking of an account.

23.  Firstly, it is the Plaintiff’s case all along that, the Defendant has never provided a true and proper account of the whereabouts of the Account Balance. On the Plaintiff’s own case as set out in the 3^rd Affirmation of LZXZ, neither the statement provided by the Defendant as at 30 September 2018 nor the Account Statement dated March 2019 produced in the Affirmation of CSKJ touches on the Relevant Period. Therefore the Plaintiff has not been able to proceed with the taking of account without a true and proper account being rendered by the Defendant.

24.  As stated in Hong Kong Civil Procedure 2025, Volume 1, at §43/7/1,

“There is no default procedure, as in a writ action, so when (for example) in an inquiry as to damages the paying party defaults in complying with a direction of the court the party prosecuting the inquiry must either obtain a “four-day order”, enforceable by committal or sequestration (O 45, rr 5– 7), or an order that unless the direction is complied with by a specified date the defaulting party will be debarred from adducing evidence on the inquiry (Dowson & Mason Ltd v Potter [1986] 1 W L R 1419, 1421E, F, 1425H).”

25.  In this regard, Counsel for the Plaintiff has placed much reliance on paragraph 174 of Libertarian Investments (supra) as set out in full in the above. Mr Lau submits that, when there is an absence of evidence because of the defaulting party, the Court is entitled to take a robust approach and make any assumption against the party whose conduct has deprived it of necessary evidence. As I understand the submissions made at the hearing, Mr Lau asks the Court to make assumptions against the Defendant and find that the Account Balance in the sum of HK$ 2,148,464.47 remains in the Account as of today.

26.  However, I should point out that, the case Libertarian Investments (supra) is concerned with the issue of what the appropriate relief should be granted and the assessment of quantum after the defendant’s breaches of fiduciary duties were established after trial. The Court of Final Appeal has found that, the court below has failed to consider whether further accounts and enquiries would be productive, which enables the court to intervene and substitute an order of equitable compensation based on the available evidence, which is considered sufficient to make an assessment.

27.  Contrary to the facts of Libertarian Investments (supra), there is no judgment on liability against the Defendant in present case, therefore there is also no basis for the Plaintiff to effectively ask for any equitable compensation. In fact, the judgment of Libertarian Investments (supra) at paragraphs 167-168, clearly states that an account is not a remedy for wrong nor does it provide the plaintiff with a remedy. It is described as a tool for enforcement and the first step in a process which enables the plaintiff to identify and quantify any deficit in the trust fund and seek the appropriate relief.

28.  At this juncture, I should briefly deal with Mr Lau’s submissions that, liability of the Defendant is established by the 7/2/2024 Order where there was an order for payment of any sums found due to the Plaintiff (if any) at taking of account. On the face of the court documents before this Court, I am of the view that, the order for payment is contingent upon the taking of account being fruitful, and is part of the directions given for after the Defendant has produced a true and proper account. Therefore, it is misconceived for the Plaintiff to say there is any finding of liability under the 7/2/2024 Order for the Defendant to pay the Plaintiff.

29.  Secondly and related to the point above, I am of the view that there are substantial factual disputes that should be first resolved before an account taking exercise can be carried out, which inter alia are: (1) whether there were withdrawals or transfers from the Account at the Relevant Period; (2) whether they were authorised by the Deceased; (3) whether there was a breach of trust or contract by the Defendant; and (4) whether the Defendant is liable to restore any sum.

30.  Applying the principles enunciated in paragraph 14 of Man On Sum (supra), these are clearly questions which might be relevant to whether it would be not be appropriate for the Court to direct an inquiry at this stage; and relate to issues concerning the extent of matters for which the defendant should make account.

31.  As can be seen in the RAD and the Affirmation of CSKJ filed by the Defendant, the Defendant’s case is that there were withdrawals and/or transfers to PT Holding and there was no funds remaining in the Account.

32.  At the hearing, Mr Lau is effectively asking the Court, by drawing assumptions, to ‘certify’ that the Sum which was alleged to be in the Account as at 30 September 2018 still remains in the Account as of today. Mr Lau has not addressed on how or why the Court should make such an assumption in light of the aforesaid pleas by the Defendant which clearly point to substantial factual issues that would affect how the account is taken. There is simply no place for this Court to draw assumptions against the Defendant in this regard in the absence of an account produced by the Defendant. Those factual issues should first be resolved instead of leaving it to be dealt with at this hearing for taking of account.

33.  Thirdly, in the 3^rd Affirmation of LZXZ, the Plaintiff, on one hand, complains of the Defendant’s failure to produce any account of the Account Balance rendering any account taking impossible for the Plaintiff; on the other hand, seeks to directly recover from the Defendant the credit balance in the sum of HK$ 2,148,464.47 standing in the Account.

34.  At the beginning of the hearing, I have asked Mr Lau to which relief in the Plaintiff’s claim does the present application relate, i.e. whether he is asking for ‘tracing’ in respect of the Account Balance (which is premised upon the Plaintiff’s case that the Account Balance is no longer in the Account), or whether he is asking for the Defendant to pay the Plaintiff the Sum in the Account (which means the Sum remains in the Account). Faced with the Court’s enquiry, Mr Lau submits that the Plaintiff is asking for both remedies. I consider those to be inherently inconsistent stances.

35.  In terms of the remedy for ‘tracing’, such order has in fact been granted in the 7/2/2024 Order, where the Defendant was ordered to produce an account. The failure of the Defendant in producing an account does not automatically entail that the Sum still remains in the Account. In the absence of any evidence of the current balance of the Account (or the balance at any time since September 2018), the Court is unable to draw any assumptions one way or another, regardless of how robust the Court can or should be. This Court is also guided by the principles cited in Man On Sum (supra) at paragraph 11 that Order 43 is not the appropriate avenue for seeking answers to interrogatories, or specific discovery, or clarification of accounts already rendered.

36.  In terms of seeking payment of the Account Balance, I am of the view that, the Plaintiff is in effect pursuing an order for payment under a summary order for account. This should be properly pursued by way of summary judgment or interim payment instead of under an account taking exercise.

Conclusion

37.  In light of the evidence filed by the Defendant, the Plaintiff decided to proceed with this inquiry hearing by way of the 3^rd Summons. I find it inappropriate to proceed to this hearing for account taking when there is no account produced by the Defendant and when there are substantial factual issues to be first resolved that would affect how the taking of account is conducted.

38.  Accordingly, the 3^rd Summons is dismissed. As the Defendant is absent, I make no order as to costs as to the 3^rd Summons (including costs of this hearing and costs reserved). In avoidance of doubt, the 3^rd Summons is dismissed without prejudice to the Plaintiff taking out other applications or a fresh application on a different basis.