GOURAND SAS v. HK YONG JIU CHANG TRADE LTD AND OTHERS

HCA 189/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 189 OF 2014

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D E C I S I O N

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Introduction

1.  This is the plaintiff’s application to continue the ex parte injunction order to restrain the 3^rd to 8^th defendants from disposing of certain amount of their properties.

2.  The plaintiff commenced this action in January 2014, having been the victim of a series of fraudulent e-mails which caused it to transfer to the fraudster(s) various sums in December 2013 (approximately US$606,000, US$700,000 and US$454,000),

3.  The defendants are sued either as what can be called “first-tier” recipients (possibly also the fraudsters), or as what can be called “second-tier” recipients.  The latter are in short those who received portions of the plaintiff’s money given to them by some of the “first-tier” recipients.

4.  Three of the 8 defendants (the 3^rd, 4^th and 7^th defendants (respectively “D3”, “D4” and “D7”, collectively “the opposing defendants”) appeared at the hearing to oppose the application.  They all contend that the injunction order against each of them should be discharged.

Issues in this application

5.  While none of the opposing defendants dispute the fraud, they all contend that they were bona fide recipients for good consideration of portions of the plaintiff’s money.  Accordingly, there is no valid reason for the injunction order against them to be continued.

6.  There is a further contention that the “balance of convenience” is in favour of discharging the injunction order against the opposing defendants.

“Innocent” receipt of the plaintiff’s money

7.  Generally, the opposing defendants claim that the money they received was the sale proceeds of their legitimate businesses in jade and jewellery sale.  The plaintiff refuses to accept their claim to be necessarily true.

8.  The case of each of the opposing defendants is not entirely the same; correspondingly, the criticisms levied against each by the plaintiff are different.  For this reason, they will be considered separately.

9.  In relation to D3, it is noted that:

(a) he accepts that he has received from the 1^st defendant (“HK Yong Jiu Chang”) a total of some HK$3.6 million;

(b) he claims that he has in effect been a “middleman” between jewel purchasers and suppliers, earning commission from the transactions he introduced.  There is however no documents or records (such as business registration or tax returns) to support the claim;

(c) Yang of HK Yong Jiu Chang was introduced to him at the end of 2013;

(d) shortly later (in December 2013), he says he met Yang by chance, and Yang told him Yang wanted to buy jade stones;

(e) after D3 showed Yang several jade stone photos, Yang indicated he would buy three of the jade stones;

(f) Yang then paid various sums amounting to millions of dollars to D3 in advance without security being provided.  It is important Yang was not D3’s close friend, nor were they business acquaintances; D3 did not have any business address either (there is also no evidence Yang knew of D3’s address or credit worthiness).

10.  In relation to D4, his case is:

(1) he has been operating a jade/jewellery business since 1995;

(2) he has known the father of D7 for over 40 years (D7’s father being one of D4’s suppliers and customers);

(3) in early November 2013 an agent asked D4 to find a jade Buddha for a customer (later turned out to be the business of D7’s father).  This resulted in a sale of a jade Buddha to the business of D7’s father in mid-November 2013;

(4) D4 received a total of HK$1.09 million for the sale in December 2013.  Of that sum, HK$1 million was transferred to D4’s business bank account at the end of December 2013 while HK$90,000 was paid in cash by the said agent.

11.  The above mode of payment is, to put it mildly, unusual.  There is no evidence that such mode of payment is common in the jade or jewellery trade, nor is such mode of payment shown in the earlier business transaction records between D4 and the business of D7’s father.

12.  In relation to D7, his contentions are:

(a) since about 2013, to save overhead and other expenses, he has been working as an agent or “middleman” between buyers and vendors;

(b) Yang of HK Yong Jiu Chang has earlier purchased through D7 a few luxury watches;

(c) Yang approached D7 asking for a jade Buddha. Consequently, D7 sourced for it from D4;

(d) D4’s sale price to D7 was HK$1.07 million;

(e) D7 told Yang the jade Buddha would be available for HK$1.12 million (the price difference of HK$50,000 was in effect D7’s profit).

13.  Unlike D3 or D4, D7 has not exhibited any business transaction records as supportive evidence (be they records of his own or that of his father’s business), and no explanation for such has been given. Because of the differences in the account given by D4 and D7 (summarized in para 10(1) to (4) above (D4) and 12(a) to (e) above (D7)), it does not appear they are in fact referring to the same sale and purchase transaction.

14.  In view of the above, it is hardly surprising the plaintiff refuses to accept the opposing defendants’ case as inherently credible.

Good arguable case

15.  There is no dispute the plaintiff’s burden at this stage is to establish that there is a good arguable case in support of its claims.

16.  The causes of action relied upon by the plaintiff in this application are:

(1) tort of conversion;

(2) unjust enrichment;

(3) constructive trust.

The plaintiff sensibly did not emphasise its claims based on “conversion” (without expressly abandoning it), there being a strong argument that the transfer of fund via bank account entries are in the nature of incorporeal assets: see, for example, Clerk & Lindsell on Torts (2010) 20^th Ed, para 17-35.

17.  In relation to the other two causes of action, it is true a bona fide purchaser in good faith for value has a good defence.  However, in light of the conclusion reached under the preceding heading, I find that it cannot be properly said that the plaintiff has failed to establish a good arguable case thereunder.

18.  Once it is doubtful if the opposing defendants’ dealings with the “first-tier” recipient(s) have been conducted in the ordinary course of the opposing defendants’ businesses (or alleged businesses), it is arguable if an adverse inference can be drawn regarding their good faith (“good faith” is the main plank of the opposing defendants’ argument that there is no good arguable case regarding “unjust enrichment” and “constructive trust”).

“Balance of convenience”

19.  The proper consideration is that:

“… The court will therefore take whichever course appears to carry the lower risk of injustice if it should turn out that it is wrong. This ‘fundamental’ principle is the source of the guidelines that have evolved for the determination of interlocutory injunctions … ” (para 12(d) thereof).

Music Advance Ltd v Incorporated Owners of Argyle Centre Phase I [2010] 2 HKLRD 1041, citing Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670 at 680 D-G; R v Secretary of State for Transport ex parte Factortame Limited (No 2) [1991] 1 AC 603; Zockoll Group Ltd v Mercury Communications Ltd [1998] FSR 354.

20.  This ground is expressly relied on by D7.  His principal ground for asserting that the balance of convenience is that the injunction order has frozen his working capital.

21.  The evidence adduced in support of this assertion is however far from satisfactory.  In particular, D7 has deposed in effect that he has had the financial support of his father to operate his businesses.

22.  The other of the opposing defendants have simply not given particulars as to their means or source(s) of fund.

23.  In short, I conclude that the circumstances are such that the “balance of convenience” lies in continuing the injunction order.

Other matters

24.  I have also considered the other guidelines concerning the grant or refusal of interlocutory injunction orders: see, for example, Hong Kong Civil Procedure 2014, Vol 1, para 29/1/11 to 29/1/17 and 29/1/65 to 29/1/72, and conclude that it is proper to exercise my discretion to continue the injunction order.

25.  In particular, as regards “real risk of dissipation of assets”, the matters set out in para 8 to 14 and 18 above are also relevant to an adverse inference to be drawn against the opposing defendants’ intention regarding the possible disposal of their assets.  I also note in this regard the nature of the plaintiff’s causes of action herein (para 16(2) and (3) above) can entitle the plaintiff to relief such as tracing.

26.  At one stage during the hearing D7 indicated that consideration should be given to the fortification of the plaintiff’s undertaking.  Having clarified that the amount of fortification D7 had in mind was an amount equivalent to the bank deposit interest for the amount enjoined by the injunction order, D7 intimated that this aspect is no longer emphatically pursued.  I consider the amount is likely to be miniscule and do not propose to make any such order.

27.  Finally, the parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the decision and its comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

Conclusion

28.  The ex parte injunction order is to continue until judgment in the action or further order.

Costs order nisi

29.  There is no apparent reason to depart from the usual rule that costs should follow the event.  There will accordingly be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of this application be the plaintiff’s costs in the cause.  D3’s own costs are to be taxed in accordance with the Legal Aid Regulations (Cap 91A).

(Andrew Chung) Judge of the Court of First Instance High Court