CHAN MAN YAM v. LUNG TSZ HIN

DCCJ 5095/2020

[2021] HKDC 941

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5095 OF 2020

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JUDGMENT

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1.  This is the plaintiff’s application for summary judgment in respect of a sum of $650,000 which was allegedly transferred from her bank account to the defendant’s bank account without her knowledge or consent.

The plaintiff’s case

2.  On or around 20 October 2019, the plaintiff received a telephone call from an unknown person purporting to be a law enforcement officer of Mainland China (the “Caller”), who represented that the plaintiff’s personal and bank account details had been stolen and misused in Mainland China.  The plaintiff was further told that a large amount of money of unknown origin had been deposited into her bank account in Mainland China.  The Caller proposed to meet with the plaintiff at a hotel on 21 October 2019 to discuss the matter.

3.  On 21 October 2019, the plaintiff went to the hotel as told but when she arrived, she received another call from the Caller and she was told that given her personal and bank account details were compromised, she had to immediately open a new bank account with Bank of China (Hong Kong) Limited (“BOC”).

4.  The plaintiff was worried that she was involved in some illegal activity and thus followed the instructions of the Caller to open a bank account with BOC (the “BOC Account”) on the same day.

5.  Also on 21 October 2019, the plaintiff deposited $40,000 into the BOC Account.  The Caller called her again and told her to deposit a further $620,000 into the BOC Account the next day.

6.  On 22 October 2019, the plaintiff deposited $650,000 into the BOC Account.  Thereafter, she received another call from the Caller who gave her a weblink and asked her to fill in her internet banking details and password for the BOC Account on the website.  The plaintiff did so accordingly.

7.  Later that same day, the plaintiff was told by her colleagues that she might have fallen victim to a scam, and so she checked the BOC Account balance.  She discovered that at around 11:31am on 22 October 2019, a sum of $650,000 (the “Sum”) had been transferred from her BOC Account to another bank account (the “1^st Receiving Account”) belonging to a XU Minghua (“Xu”) without her knowledge or consent.

8.  The plaintiff further discovered that the at about 11:41am on 22 October 2019, the Sum was transferred from the 1^st Receiving Account to another account with BOC belonging to the defendant (the “defendant’s Account”).  There was no other banking transactions of the 1^st Receiving Account between 11:31am and 11:41am on that day.

9.  The plaintiff reported the matter to the Police for investigation.  On 20 January 2020, the Police informed the plaintiff’s solicitors that they had arrested the defendant and the Sum had been frozen in the defendant’s Account.

10.  By a Writ of Summons dated 22 September 2020, the plaintiff sought a declaration that the defendant holds the Sum on constructive trust for the plaintiff and an order for the payment back of the Sum based on unjust enrichment. 

The defendant’s defence

11.  The defendant denies that he was the Caller and claims that he does not have any knowledge of the matters that allegedly took place between the plaintiff and the Caller. 

12.  The defendant also denies having received any sum (whether the Sum or otherwise) of money from the plaintiff’s BOC Account. 

13.  In respect of the sum of $650,000, the defendant avers that it was deposited into the defendant’s Account on 22 October 2019 upon receiving a message from a client called 黃春燕(“Huang”) in the Mainland at around 11:44am on 22 October 2019.  

14.  The defendant avers that he is the bona fide owner of the sum of $650,000 for valuable consideration and without notice of the pleaded by the plaintiff and he relies on the following particulars:-

(1)  In the months of July and August 2019, the defendant was employed by one Chan Mun Tong (“Chan”) to work in Kam Wo Exchange licensed under the Anti-Money Laundering and Counter-Terrorist Ordinance, Cap 615 (“AMLO”) under licence no. 16-04-01821 which is valid from 22 April 2016 to 15 April 2022.

(2)  The defendant had authorised Chan to use the defendant’s Account to assist in the running of Kam Wo Exchange’s business by receiving Hong Kong dollar deposits into the defendant’s Account and withdrawing credit balances therefrom.

(3)  The authorisation for Chan to use the defendant’s Account continued after the defendant had terminated his employment.

(4)  Having confirmed receipt of $650,000 into the defendant’s Account and in the course of his money exchange business, Chan had remitted a total sum of RMB 580,250 by 2 remittances into an account in the name of 林文淑(“Lin”) maintained with the Agricultural Bank of China on the instruction of Huang.

(5)  Neither the defendant nor Chan had any knowledge of the alleged telephone scam before reading the plaintiff’s Statement of Claim.

15.  The defendant counterclaims, amongst other things, a declaration that he is the beneficial owner of the sum of $650,000 and an order that the entire credit balance being frozen in the defendant’s Account be released to the defendant or Chan on his behalf.

Relevant legal principles

16.  The parties are not in dispute as to the principles relevant to an application for summary judgment.  In gist:-

(1)  The court has to determine two questions: firstly, whether what the defendant says is believable as opposed to whether its version of events is to be believed; and secondly, if it is, whether what the defendant says amounts to an arguable defence in law: Schindler Lifts (Hong Kong) Ltd v Ocean Joy Investments Ltd [2003] 1 HKC 438 at §10 per Ma J (as he then was).

(2)  The court will not take the alleged defence on its face value but will test it against the evidence disclosed in the affidavit, including matters such as contemporaneous documents, whether the alleged defence is inconsistent with the defence previously put forward…The court will also consider the inherent probability of the defence: Paul Y Management Ltd v Eternal Unity Development Ltd (unreported, CACV 16/2008, 12 August 2008) at §19 per Cheung JA.

(3)  The defendant bears the burden of satisfying the court that he has a real or bona fide defence (ie triable issues), or there ought for some reason be a trial of the plaintiff’s claim: Hong Kong Civil Procedure 2021 Vol. 1 §14/4/9.

(4)  The defendant’s affidavit must condescend upon particulars and should as far as possible deal with the plaintiff’s claim and affidavit and state clearly and concisely what the defence is and what facts are relied on to support it: Hong Kong Civil Procedure 2021 Vol. 1 §14/4/4.

(5)  The mere fact that a defendant has a counterclaim does not necessarily entitle him to leave to defend.  If the counterclaim is frivolous or untenable, it will be disregarded: Hong Kong Civil Procedure 2021 Vol. 1 §14/4/14B.

17.  In respect of unjust enrichment, it is also well-established that the issue can be approached by asking the following four questions:-

(1)  Was the defendant enriched?

(2)  Was the enrichment at the plaintiff’s expense?

(3)  Was the enrichment unjust?

(4)  Are any of the defences applicable?  In the context of this case, whether the defendant can rely on the defence of bona fide purchaser for value without notice?

See:   Shanghai Tongji Science & Technology Industrial Co Ltd v Casil Clearing Ltd 7 HKCFAR 79 at §67 per
Ribeiro PJ

18.  A victim of fraud would prima facie have a claim in money had and received and may assert a proprietary claim against a recipient insofar as the fraudulently obtained funds are traceable into his hands, unless the recipient can establish that he is a bona fide purchaser for value without notice: Ferrari North America, Inc v Changhon International Energy Co., Limited & Others [2018] HKCFI 1063 at §12 per Wong J.

19.  Further, even though the underlying reason for the commencement of proceedings was a fraud perpetrated by some unknown fraudster(s), in the context of an application for summary judgment, the plaintiff would not be caught by the so-called “fraud exception” under RHC O14 r 1(2)(b) so long as the plaintiff’s claim against the particular defendant is not based on an allegation of fraud: Ferrari North America (supra) §§13-15.  In the present case, the plaintiff is not alleging any kind of fraud by the defendant and her claim against the defendant is solely based on unjust enrichment.

Unjust enrichment?

20.  The plaintiff has produced the bank statements of her BOC Account, as well as the Financial History Transaction Lists of the 1^st Receiving Account and the defendant’s Account.  It is clear from these documents that after the Sum was transferred from the plaintiff’s BOC Account to the 1^st Receiving Account at 11:31am on 22 October 2019, it was then quickly transferred from the 1^st Receiving Account to the defendant’s Account at 11:41am.  The 1^st Receiving Account had no other significant transactions or balance before or after the Sum was transferred in and out of the account.  In particular, the 1^st Receiving Account only had an account balance of $47.83 before and after the transfers in and out of the Sum.  I am satisfied that the sum of $650,000 received by the defendant’s Account is the same as the Sum that originated from the plaintiff’s BOC Account, and the defendant was enriched by the Sum at the expense of the plaintiff.

21.  It is common ground between the parties that the plaintiff had never had any dealing with the defendant that would justify the payment of the Sum to the defendant.  The defendant’s enrichment is prima facie unjust.

22.  The remaining question is whether the defendant is entitled to rely on any applicable defence to resist the plaintiff’s claim for restitution.

Credible defence?

23.  The defendant claims that he is a bona fide purchaser for valuable consideration of the Sum without notice of any fraud on the plaintiff. 

24.  Mr Dickson Chan, counsel for the plaintiff, submits that the defendant’s defence should be dismissed at the outset, as it does not amount to an arguable defence in law.  I accept Mr Chan’s submissions.

25.  The defendant’s defence is essentially that the Sum was received in the course of Chan’s money exchange business and Chan provided the consideration by remitting an equivalent amount in RMB to a third party at the instruction of his client.  In other words, even on the defendant’s case, the consideration was neither provided by the defendant nor given at his instruction. 

26.  An essential element of the defence of bona fide purchaser for value is that the defendant has given valuable consideration for the property in question: TTI Global Resources Hong Kong Limited v Hongkong Myphone Technology Co Ltd & Others [2021] HKCFI 306 at §22. The defendant would therefore need to have provided some consideration for the receipt of the Sum.  Since on the defendant’s case the alleged consideration was provided by Chan, it is difficult to see how the defendant can rely on the defence when the Sum was transferred to defendant’s Account under his sole name and yet the defendant did not provide any or any valuable consideration. 

27.  In any event, even if somehow the defendant was able to rely on Chan’s alleged consideration in his defence, the defendant’s case contains significant inconsistencies and appears to be inherently incredible in several material respects.  His evidence has also failed to condescend on particulars, and it raises a lot more doubts than answers to the plaintiff’s claim.

(1)  Other than the defendant’s bare assertion, there is not a shred of evidence of him being employed by Chan and/or lending the defendant’s Account to Chan for the latter’s money service business.  Part 7 of Form 1 of the application for a Money Service Operator Licence requires that details of bank accounts used for operating an applicant’s money service must be disclosed.  The defendant did not provide any such evidence, which would have been easily obtainable if his assertions were true. 

(2)  In his affirmation in opposition to the application, the defendant exhibited a money service operator’s licence trading as “Gam Wo Exchange”.  The licence period is stated to be from 16 April 2020 to 15 April 2022.  As pointed out by Mr Dickson Chan, even assuming that “Kam Wo Exchange” and “Gam Wo Exchange” are the same business as pleaded by the defendant in his Defence and Counterclaim, no license during the material time, ie October 2019, has been exhibited.  There is no evidence of the existence of Gam Wo (or Kam Wo) Exchange as a money service business at the time when the Sum was transferred to the defendant’s Account.

(3)  The defendant did not explain why Chan had to use the defendant’s Account for the operation of money service.  It is also inherently unbelievable that the defendant would agree to continue lending his personal bank account to Chan after termination of his alleged employment.  It is even less capable of belief that Chan would trust the defendant, an alleged former employee, to receive various sums of money for his money service business.

(4)  There is no explanation whatsoever as to the relationship of various persons involved in the transfers.  For example, who is Xu and why was he/she the one who transferred the Sum to the defendant’s Account?  If the instruction to remit the RMB was given by Huang, why was it not Huang the one who remitted the sum of $650,000 to the defendant?

(5)  The defendant avers that the Sum was deposited “upon receiving a message from a client in the Mainland”, i.e. after receiving the alleged message at 11:44am.  The defendant did not produce any evidence of any person messaging the defendant or Chan for the deposit of the Sum or the remittance of the RMB580,250 to Lin.  More significantly, the bank records show that the Sum was transferred to the defendant’s Account at 11:41am, i.e. before the receipt of the alleged message.  Such contemporaneous documents clearly contradict the defendant’s case.

(6)  The remittance of the sum in RMB to Lin inexplicably took the form of two transfers, and there is no explanation as to why a single transfer would not suffice.  One tranche was in the sum of RMB488,250 by a person called 胡劍 (“Hu”) using internet banking and the other tranche was in the sum of RMB100,000 by Chan using mobile banking.  Again, the defendant did not explain how Hu’s remittance to Lin was related to or instructed by Chan or, if relevant, why Chan remitted part of the sum in RMB to Lin using another person’s account. 

(7)  The defendant exhibited an alleged remittance slip of RMB488,250 by Hu to Lin on 22 October 2019 and an alleged remittance slip of RMB100,000 by Chan to Lin on 22 October 2019.  He has also exhibited two print-screens of online banking statement showing the same.  The total sum of both remittance records is RMB588,250 as opposed to RMB580,250 as pleaded in the Defence and Counterclaim and mentioned in the defendant’s affirmation.  The defendant did not provide any explanation for the discrepancy of the two total sums. 

(8)  There is no evidence of what exchange rate was used at the material time to justify the exchange of $650,000 to RMB580,250.  The plaintiff has adduced evidence of the exchange rates for HK dollar / RMB on 22 October 2019 which ranged from 0.8964 to 0.9025, and the equivalent sum in RMB of the Sum would have been at most RMB568,625.  Such evidence was not challenged by the defendant.  Since retail currency exchange businesses usually offer exchange rates which are less favourable than the market rates, it certainly casts doubt on the defendant’s evidence that the alleged remittances in the total sum of RMB588,250 were the consideration given for the sum of $650,000.

28.  In light of the foregoing matters, it is abundantly clear that the defendant’s case contains numerous loopholes and inconsistencies which render his defence inherently improbable and practically moonshine.  It ought to be rejected.  The observations made by Master Gary CC Lam in Tang Yuan Yi v Tokyo International Investment Limited, unreported, HCA 2078/2018, 5 June 2020; [2020] HKCFI 1133 at §8 are entirely apposite:-

“……I bear in mind the trite principle that in opposing an Order 14 application, the Defendant should condescend upon particulars in terms of evidence to support its defence, and the Defendant cannot leave some relevant forensic loopholes which he should be in a position to fill up but for no good reason he does not, and then ask the Court to give leave to defend because the loopholes are a matter for trial.”

29.  In this case, there is no dispute that the defendant received the Sum as second layer recipient.  The Sum belonged to the plaintiff.  There is also no dispute that the plaintiff has no dealings with the defendant.  On the evidence adduced by the defendant, I am not satisfied that he has raised a credible defence of bona fide purchaser for value without notice.  Summary judgment should be entered in favour of the plaintiff.

30.  In his written submissions, Mr Dickson Chan has also raised arguments that the defendant is not a bona fide purchaser for value because the alleged two remittances to Lin were tainted with illegality in three ways:-

(1)  The defendant’s description of the alleged foreign exchange transaction involving the Sum is apparently an underground banking transaction, which is illegal under PRC law: Arrow ECS Norway AS v Xin Cheng Holdings (International) Company Limited, unreported, HCA 239/2016, 12 May 2016 at §§20-21; TTI Global Resources (supra) at §§49, 52; DBS Bank (Hong Kong) Ltd v Pan Jing [2020] HKCFI 268 at §40.

(2)  The operation of money service by Gam Wo Exchange using the defendant’s Account would be a non-compliance with regulations under paragraphs 2, 3, 8, 9, and 13 of Schedule 2 to AMLO.

(3)  There is no evidence that Gam Wo Exchange was licensed at the time of the alleged remittances to Lin and it is illegal to operate a money service without a licence according to s 29 of AMLO.

31.  Since I have already concluded that the defendant’s case is inherently incredible and internally contradictory in many material respects, it is strictly speaking unnecessary for me to consider the illegality or otherwise of the remittances.  It suffices to say that, on the basis of the evidence before me, the relevant transfers and remittances do appear to resemble an underground banking system or “currency matching arrangement” which has been held to be illegal in a number of cases such as DBS Bank (Hong Kong) (supra).  The effect of such illegality, if found to exist, is that the court will not enforce an exchange contract which is contrary to exchange controls under the governing law and a defendant cannot be considered to have provided value if the money was transferred pursuant to an illegal transaction. 

32.  The plaintiff has not adduced any expert evidence on the specific PRC law that is said to have been breached.  Mr Dickson Chan relies on s59(2) of the Evidence Ordinance, Cap 8 which provides that a judgment of the High Court reported in citable form is admissible as evidence of any point of foreign law as to which a finding or decision is made in that judgment.  He argues that the court’s finding of illegality of the underground banking systems under the PRC laws in decisions such as DBS Bank (Hong Kong) (supra) and TTI Global Resources (supra), which are all High Court decisions, is therefore admissible for the purpose of this application.

33.  I do not think s 59(2) is sufficient to assist the plaintiff.  S 59(3) of the Evidence Ordinance stipulates that except with the leave of the court, a party to any civil proceedings shall not be permitted to adduce any such finding or decision as is mentioned in subsection (2) by virtue of that subsection unless he has in accordance with rules given to every other party to the proceedings notice that he intends to do so.  No notice has been given to the defendant that the plaintiff intended to adduce those High Court decisions as evidence of foreign law for the purpose of this application, and the plaintiff did not apply for leave of the court to be dispensed with this requirement. 

34.  As regards the alleged breaches of the AMLO, I do not think there is enough evidence before me to make a finding one way or the other whether the defendant and/or Chan had acted in breach of particular provisions.  In any event, it is unnecessary for me to do so in light of my conclusion that the defendant does not have a bona fide defence to the plaintiff’s claim.

Disposition

35.  The plaintiff’s application for summary judgment is allowed.

36.  Final and interlocutory judgment be entered in favour of the plaintiff against the defendant for:-

(1)  a declaration that a sum of $650,000 in the defendant’s Account represents money held by the defendant on constructive trust for and on behalf of the plaintiff;

(2)  the payment of the sum of $650,000 to the plaintiff forthwith;

(3)  interest on the sum of $650,000 from 22 October 2019 to the date of this judgment at the rate of 1% over HSBC’s best lending rates that were prevailing at the material times, and thereafter at the judgment rate until payment in full;

(4)  on a nisi basis, the defendant should pay the plaintiff’s costs of this action, including the costs of and incidental to this application and her application for the Norwich Pharmacal order on 22 June 2020, with certificate for counsel.  This costs order nisi shall become absolute 14 days after the date of this judgment.