KOO CHUN HONG JONATHAN v. BANK OF CHINA (HONG KONG) LTD

DCMP 4473/2023

[2023] HKDC 1561

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 4473 OF 2023

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DECISION

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Introduction

1.  This is an application by the Plaintiff (“P”) by Originating Summons filed on 22 September 2023 (“Originating Summons”) for a Norwich Pharmacal order supported by an Affirmation of P filed on the same date (“P’s Affirmation”).

2.  The Defendant (“D”) has acknowledged service of the Originating Summons and by letter from its solicitors indicated that it does not object to the terms of the draft Consent Summons although it is not their practice to sign any documents in relation to their position so they have not done so. They have further asked to be excused from today’s hearing and did not appear at today’s hearing.

3.  After hearing Mr Chan for P, I granted the order in terms of the order contained in the draft Consent Summons save as amended by me. These are my reasons.

Background

4.  P is a university student in the UK. He says that on about 4 November 2021, he met a purported female through “Facebook Dating App” in the UK (“the Perpetrator”). At first they only chatted on WhatsApp but 2 days later he was invited by the Perpetrator for a “naked chat” through another App for which the Perpetrator had sent a link for P to download. The App requested P to allow access to the contact list of P’s mobile phone.

5.  Despite having downloaded this App, P was unable to enter the “naked chat” video App but P and the Perpetrator started a “naked chat” through WhatsApp for around 13 minutes. However, after that WhatsApp call, the Perpetrator sent the “naked chat” video which recorded P and a screenshot of P’s contact list in his phone. The Perpetrator threatened P if he did not transfer money to her designated bank accounts, she would send the “naked chat” video to the numbers in P’s contact list and upload the same to social media.

6.  P’s case is that as a result of the threat, he made 9 transfers to the Perpetrator’s designated accounts including two transfers on 18 November 2021 in the sum of HK$250,000.00 and HK$200,000.00 respectively to a bank account maintained with D (account no 012-738-2-018319-0) (“1^st BOC Account”).

7.  On the same day, P’s mother reported the matter to the Hong Kong Police (“the Police”).

8.  Subsequently, P’s solicitors were informed by the Police by letter dated 5 May 2022 that the sum of HK$450,000.00 transferred to 1^st BOC Account had been frozen but refused to provide full details of the holder of that account.

9.  By a further letter dated 23 January 2023, the Police informed P’s solicitors that HK$100,000.00 of the HK$450,000.00 had been transferred from 1^st BOC Account to another Bank of China account (account no 012-819-1-005717-3) (“2^nd BOC Account”). The Police also provided the names of the account holders of 1^st BOC Account and 2^nd BOC Account.

10.  By another letter dated 15 February 2023, the Police updated P’s solicitors that the amount frozen by them in 1^st BOC Account was diminished from HK$450,000.00 to HK$91,005.00. Despite the request for the addresses of the account holders of 1^st BOC Account and 2^nd BOC Account, the Police refused to provide the same.

Applicable Principles

11.  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).

12.  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 an 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

13.  First, I am satisfied from P’s Affirmation and exhibits therein (which includes the bank transfer records, police statement and correspondences with the Police) that there is cogent and compelling evidence to demonstrate that serious tortious or wrongful activities have taken place.

14.  Second, P seeks disclosure of the information from D including: (1) the address and contact detail of the respective holder of 1^st BOC Account and 2^nd BOC Account; (2) current balances in the accounts; and (3) transaction details since 18 November 2021 until the date of the order; to commence proceedings against the holders of 1^st BOC Account and 2^nd BOC Account. I am satisfied that the Norwich Pharmacal Order will very likely reap substantial and worthwhile benefit for P as it will enable him to obtain details of the account holders, their addresses and trace the whereabouts of the sums of monies he transferred into 1^st BOC Account so as to facilitate the taking of legal proceedings for recovery of his monies.

15.  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 and its ability to comply with the order sought.

16.  As for costs, the general rule is that the party seeking discovery should pay the costs of the party making disclosure, including the costs of making the disclosure, on an indemnity basis and such costs if not agreed are to be taxed.