POWER-PACK NETWORK INTERNATIONAL PTE LTD v. STANDARD CHARTERED BANK (HONG KONG) LTD

DCMP 5999/2023

[2024] HKDC 291

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 5999 OF 2023

————————

————————

BETWEEN

————————

————————

DECISION

————————

Introduction

1.  This is an application by the Plaintiff (“P”) by Originating Summons filed on 27 December 2023 (“Originating Summons”) for a Norwich Pharmacal Order against the Defendant (“D”), a bank. The application is supported by an Affidavit of Lim Kim Chow (“Lim”), the director of P, filed on the same day (“P’s Affidavit”).

2.  By letters dated 11 January 2024 and 1 February 2024, which were placed before me, D indicated inter alia that it takes a neutral position to the application and has asked to be excused from today’s hearing. D did not appear at today’s hearing.

3.  After hearing Ms Li, solicitors for P, I granted an order in terms of the draft order submitted to me. These are my reasons.

Background Facts

4.  P is an exempt private company limited by shares registered in Singapore carrying on business in wholesale trade of a variety of goods.

5.  On 26 September 2022, whilst working from home for P, a pop-up window appeared on the screen of Lim’s computer. It stated “CONTACT Microsoft Defender @ +65 316-8790”. The computer screen was frozen.

6.  Lim then called the number and spoke to a person called John William who informed Lim that he was from Microsoft Defender. Then the name “John William” appeared on Lim’s computer screen.

7.  Later, Lim received a missed call on his mobile phone and he returned the call to that number. The person in that call told Lim that his computer had been hacked by cyber criminals. He asked Lim to contact Cyber Security Singapore. He also asked Lim to search Cyber Security Singapore online to find out the hotline number.

8.  Lim did as instructed and called the hotline from Cyber Security Singapore. The person from Cyber Security Singapore who answered the phone passed the call to a person named Edward Williams. He claimed to be from Microsoft Defender working in Cyber Security Singapore to catch cyber criminals. He gave his mobile number to Lim and asked him to call him at that number.

9.  When Lim called that number, a pop-up screen appeared on Lim’s computer screen for typing in Lim’s personal data which included his mobile number and address.

10.  Edward Williams told Lim that his computer was hacked and asked Lim to login to P’s DBS Singapore account (account number 0299011499) (“P’s Account”). He saw that a sum of SGD$100,000.00 was added to P’s Account. He was then instructed to transfer 2 sums of money to account no 00325788931231 (“the 1^st Layer Account”) held with D as bait to capture the hacker.

11.  Lim transferred the sums of SGD$85,000.00 and SGD$104,000.00 (“the transferred sums”) from P’s Account to the 1^st Layer Account as instructed.

12.  Lim only realized that he was deceived when the transferred sums were not returned to P’s Account. He made a report to the Singapore Police on the same day. He also filed an e-report to the Hong Kong Police (“HKP”) on 12 October 2022 and made a statement with HKP on 25 October 2022.

13.  On 18 September 2023, HKP confirmed that the transferred sums were transferred from the 1^st Layer Account to an account at China Citic Bank International (“the 2^nd Layer Account”).

14.  P seeks the bank record documents relating to the transferred sums in order to trace the transferred funds from the 1^st Layer Account to the 2^nd Layer Account for taking legal action to recover the transferred sums.

Applicable Principles

15.  The applicable principles relating to applications for Norwich Pharmacal relief are well-settled. It is not a usual order and will not be lightly granted in the absence of powerful factors:

(1) It is made against an innocent party whose only involvement is to become mixed up in the tortious or wrongful activities of others;

(2) The wrongdoing exists only on the part of a person or persons against whom no relief may be sought at the stage of the application and against whom there is probably insufficient evidence to found an action;

(3) There will usually be a legal relationship between the innocent person against whom a discovery order is sought and the alleged wrongdoer, and the relationship may involve strict duties to be observed on the innocent party’s part. Any discovery to be made will involve a breach of confidentiality and may expose the innocent party to civil liability and possibly even criminal liability; and

(4) The court must accordingly balance the competing interests of the victim of the alleged wrongdoing and an innocent party caught up in the wrongdoing.

See A Co v B Co [2002] 3 HKLRD 111 at §12 per Ma J (as he then was).

16.  The 3 main requirements were summarized by Coleman J in A1 and Another v R1 and Others [2021] HKCFI 650 at §56:

(1) There must be cogent and compelling evidence to demonstrate that serious tortious or wrongful activities have taken place (where allegations of fraud or something similar requires the degree of proof to be correspondingly high);

(2) It must be clearly demonstrated that the order will or will very likely reap substantial and worthwhile benefits for the plaintiff, and where a tracing claim is made that the discovery sought will either allow the plaintiff to preserve what may well be his assets or realistically lead to the discovery of such assets; and

(3) The discovery sought must not be unduly wide, so any order must be specific and also restricted to those documents or those classes of documents that are necessary to enable the plaintiff to preserve or discover assets.

Analysis

17.  First, I am satisfied from P’s Affidavit and exhibits therein (which includes the bank transfer records, bank statements of P’s Account, police statements and correspondence with HKP) that there is cogent and compelling evidence to demonstrate that serious tortious or wrongful activities have taken place.

18.  Second, P seeks disclosure of the following documents from D for the period from 26 September 2022 to the date of the order relating to: (1) the address and contact detail of the holder of the 1^st Layer Account (“Account Holder”); (2) all accounts of the Account Holder (“the Accounts”); (3) payment into and out of the Accounts; (4) source and destination of all payments into and out of the Accounts; and (5) sums or balances at present standing in the Accounts. I am satisfied that the Norwich Pharmacal Order will very likely reap substantial and worthwhile benefit for P as it will enable it to obtain details of the Account Holder, his/her addresses, and other information to trace the whereabout of the transferred sums so as to facilitate the taking of legal proceedings for the preservation and/or recovery of P’s monies.

19.  Third, I am satisfied the discovery sought is specific and not unduly wide and are limited to documents necessary to enable P to preserve or discover assets. No objection has been taken by D on the scope of the discovery nor has it stated it has any difficulty to comply with the order sought save for requiring 28 days to comply with any court order.

20.  I therefore am satisfied that the orders sought should be granted.