CHAN CHING MAN v. LIVI BANK LTD

DCMP 1499/2025

[2025] HKDC 1097

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1499 OF 2025

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BETWEEN

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REASONS FOR DECISION

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1.  On 21 May 2025, I heard the Plaintiff’s application for a Norwich Pharmacal/disclosure order against the Defendant. The application was made by Originating Summons dated 12 March 2025.

2.  At the conclusion of the hearing, I granted an order in terms of the draft order submitted by Mr Stephen Fung (“Mr Fung”) of Messrs. Tang and Lee, solicitors for the Plaintiff (save for one term sought) and reserved the reasons for my decision.

3.  I now set out the reasons for my decision.

RELEVANT BACKGROUND

4.  The background leading up to the present application has been set out in the Affirmation of Chan Ching Man, the Plaintiff herein, dated 12 March 2025. She deposes to falling victim to telephone fraud in June 2024.

5.  The Plaintiff alleges that on the 11 June 2024, she received a telephone call on her mobile phone from a Putonghua speaking male (“Male 1”) purporting to be a staff member of Industrial and Commercial Bank of China (Asia) Limited (“ICBC”). During this telephone conversation, Male 1 falsely claimed that the Plaintiff has been enrolled in an insurance plan and would be required to pay a premium unless she submitted a cancellation application.

6.  The Plaintiff was directed by Male 1 to download a piece of software named “VooV Meeting” and was provided with a meeting code. Male 1 then told the Plaintiff that a manager from ICBC Headquarters would follow up on the matter. Based on the false information provided by Male 1, the Plaintiff installed the software as instructed and joined a telephone meeting using the meeting code.

7.  In the ensuing telephone meeting, a second Putonghua speaking male (“Male 2”) and another Putonghua speaking female (“Female 1”), both claiming to be managers at ICBC Headquarters, requested the Plaintiff to provide them with information concerning her Alipay account (which was connected to her Bank of China (Hong Kong) Limited Credit Card Account) and information regarding the Plaintiff’s other bank accounts, so as to allegedly help the Plaintiff stop the payment of the alleged insurance premium through the Plaintiff’s Alipay account.

8.  Relying on the false information, the Plaintiff did eventually, on the direction of Female 1, make the following transfers:-

(1) The sum of HK$289,351.00 from her bank account maintained with ZA Bank Limited to a Livi Bank Limited (the Defendant herein) account registered to one Lo John Jr; and

(2) The sum of HK$311,121.00 from her bank account maintained with Bank of China (Hong Kong) Limited to a Nanyang Commercial Bank Limited account registered to one Zhou Qingshi.

9.  After the aforementioned transfers were made by the Plaintiff, Female 1 continued to make repeated requests to the Plaintiff to transfer more money to other bank accounts. As this time, the Plaintiff realised that she may have been deceived.

10.  On 11 June 2024, the Plaintiff reported the matter to the Police.

11.  In early August 2024, the Police informed the Plaintiff via telephone that a significant amount of money, connected to the transferred sum of HK$289,351.00 to Lo John Jr’s bank account, had been identified by the Police in another bank account. Details of this recipient bank account were not provided by the Police at this time.

12.  Through correspondence between the Plaintiff’s solicitors and the Police, the Police eventually, by letter dated 16 September 2024, identified the recipient bank account of the transfer from Lo John Jr, as being a bank account registered to one Zhang Chenfan, maintained with MOX Bank Limited. No other details or information has been provided by the Police to the Plaintiff.

JURISDICTION

13.  The Originating Summons includes on its face, the purported jurisdictional bases for the present application which has been framed as a Norwich Pharmacal application. These include, as contended by the Plaintiff, the following:-

(1) The inherent jurisdiction of the District Court; and/or

(2) Section 52 of the District Court Ordinance, Cap 336.

14.  At the hearing I expressed to Mr Fung my reservations as to these jurisdictional bases upon which the Plaintiff relies.

15.  First, I expressed that I harbour significant doubts as to whether the District Court, as a court of statutory creation, possesses an inherent jurisdiction to grant Norwich Pharamacal orders.

16.  Secondly, section 52 of the DCO empowers the District Court to grant injunctions and make declarations. I further expressed to Mr Fung that I also harbour significant reservations as to whether, on proper analysis, a Norwich Pharmacal order, which is a disclosure order made against an innocent third party, can or should be categorised as an “injunction”, per se, for the purposes of section 52 of the DCO.

17.  Fortunately for the Plaintiff, the context of the present application does not require this Court to decide whether the District Court has the jurisdiction to grant the orders sought on the basis of inherent jurisdiction or pursuant to section 52 of the DCO.

18.  As the Defendant is a bank and the disclosure sought is for banking records held by it, I am satisfied that I have jurisdiction to grant the disclosure orders sought pursuant to section 21 of the Evidence Ordinance, Cap 8 (the “EO”), which provides that:-

“(1) On the application of any party to any proceedings, the court or a judge may order that such party be at liberty to inspect and take copies of any entries in a banker’s records for any of the purposes of such proceedings.”

19.  The Defendant has been served with the Originating Summons and has been given notice of this hearing. The Defendant has indicated in correspondence with the Plaintiff that they remain neutral in the Plaintiff’s application and have asked to have their attendance at this hearing excused.

APPLICABLE LEGAL PRINCIPLES & ANALYSIS

Section 21 of the Evidence Ordinance, Cap 8

20.  The applicable legal principles in relation to applications and orders made under s 21 of the EO are well-established and can be gleaned from the judgment of Deputy High Court Judge Poon (as he then was) in CTO (HK) Ltd v Li Man Chiu & Others [2002] 2 HKLRD 875 at §§12-13.

21.  Whilst it has been said that a s 21 EO order is justified where a plaintiff seeks to trace funds which in equity belong to him and of which there was strong evidence that he had been fraudulently deprived and delay might result in the dissipation of the funds before trial, there are three limits:-

(1) First, the plaintiff must demonstrate a real prospect that the information may lead to the location or preservation of assets to which he is making a proprietary claim;

(2) Second, the documents sought to be disclosed must be identified with some specificity as would be expected of a subpoena; and

(3) Thirdly, the court needs to balance the potential advantage against the detriment to the person against whom the order is sought, not merely in terms of costs but by way of invasion of privacy and requiring breach of obligations of confidence to others.

22.  In the present case, the Plaintiff has satisfied the requirements of a s 21 EO order, in that:-

(1) There is before me cogent evidence that the Plaintiff has been, prima facie, scammed/defrauded into transferring, inter alia, the sum of HK$289,351.00 to the bank account registered to Lo John Jr and maintained with the Defendant and delay might result in the dissipation of such sums before trial;

(2) I accept that the Plaintiff has demonstrated a real prospect that the information she seeks by this application may lead to the location or preservation of such monies. I am of the view that the proposed order sought would, or would very likely, have the effect of:-

(a) Assisting in investigating the movement of money in and out of the bank account maintained by Lo John Jr with the Defendant; and

(b) Ascertaining any remaining balance in the bank account maintained by Lo John Jr with the Defendant, which may include money transferred into it by the Plaintiff.

(3) I am also satisfied that the discovery sought by the Plaintiff is sufficiently specific and not unduly wide.

(4) I am therefore satisfied that the order sought would, or would very likely, reap substantial and worthwhile benefits for the Plaintiff, as it will enable her to trace the whereabouts of the sums that the Plaintiff transferred to Lo John Jr, potentially enable her to preserve the same and potentially enable her to take necessary action to recover them against the wrongdoer(s). I have considered the lack of objection by the Defendant, save for some comments and proposed amendments to the orders sought in the Originating Summons. These observations and amendments have already been incorporated into the draft order submitted to me by the Plaintiff at the hearing.

(5) Balancing the potential advantage that a s 21 EO order would give to the Plaintiff against the detriment which may be occasioned by the Defendant, who has found itself mixed up in the wrongdoing through no fault of its own, I find that a s 21 EO order should be granted in the circumstances.

23.  I therefore made an order in terms of paragraphs 1, 2, 3 and 5 of the draft Order submitted to me by Mr Fung at the hearing.