JIA ASIA ASSET MANAGEMENT PTE. LTD. v. HONG KONG BARTER EXCHANGE LTD AND ANOTHER

HCA 1188/2025

[2025] HKCFI 2964

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1188 OF 2025

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D E C I S I O N

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Introduction

1.  This is the first hearing of the inter-partes Summons dated 23 June 2025 (“the Summons”) application of the Plaintiff (“P”) seeking: (1) a Mareva injunction; (2) a proprietary interlocutory injunction; and (3) ancillary disclosure order; against the 1^st Defendant (“D1”) and 2^nd Defendant (“D2”) (collectively “Ds”).

2.  According to the indorsement of claim in the Writ of Summons dated 23 June 2025, P claims against Ds a total sum of EUR500,000 (“the Sum”) transferred from P’s account to D1’s bank account (“D1’s Bank Account”) on 11 April 2024 and 12 April 2024. It is said that the Sum was induced by D1 and/or D2’s misrepresentation as to their ability to procure the issuance of a cash-backed bank guarantee and there was also a total failure of consideration in respect of the Sum’s transfer. P claims against Ds relief including: a declaration that P is the owner and has proprietary interest over the Sum, an order that D1 and/or D2 do pay the Sum to P, restitution of the Sum in unjust enrichment, a declaration that the D1 and/or D2 hold and/or are liable to account to P for the Sum as constructive trustee, all necessary accounts and inquires, and damages.

3.  At today’s hearing Mr Chan, counsel, appeared for P and Mr Chen, counsel, appeared for Ds.

4.  Although the Summons and the Supporting Affirmation were served on Ds with 2 clear days’ notice, in view of the short period of time to respond, and Ds have yet time to give full instructions to their legal representatives (as stated on affirmation by D2), I see no reason, why the Summons should not be adjourned for substantive argument with directions for the filing of evidence, and if urgency and need for temporary stop-gap measures required to grant interim interim relief.

5.  Notwithstanding in Mr Chen’s skeleton it was indicated that the interim interim relief sought by P was opposed, at today’s hearing Mr Chan pursued the application for interim interim relief.

Discussion and Disposition

6.  On the approach which the Court should adopt when considering whether to grant any interim interim relief, I refer to the Court of Appeal decision in China Shanshui Cement Group Limited & Others v Zhang Caikui & Others [2018] HKCA 409 where Lam VP reiterated at §13: “that interim interim relief is meant to be an urgent temporary stop-gap measure and the circumstances were such that the court has to do practical justice on the balance of fairness even though it may not have sufficient time to consider the matter fully”. The court will only consider granting such relief when it does not have sufficient time or fair opportunity to consider an application for interlocutory relief fully (see §16).

7.  Adopting the approach of test of balance of fairness, I would refuse any application for interim interim relief pending the determination of the Summons.

8.  Firstly, there is plainly a lack of urgency required for the grant of interim interim relief. According to P, the matters complained of leading to the transfer of the Sum took place on 11 and 12 April 2024 which is well over one year. P became suspicious of D2 in around May 2024 which led to P reporting to matter to the Singapore Police and the Hong Kong Police on 13 and 14 May 2024 respectively. However, the fact is that P only commenced the present proceedings on 23 June 2025 and the Summons was taken out on an inter parte basis. This clearly demonstrates that there is no need for “urgent” stop-gap measure. Furthermore, if there is any real risk of dissipation of assets by Ds, the Sum would have long gone by now. However, solicitors for D1 had by letter dated 5 June 2025 stated that the Sum remains in D1’s Bank Account.

9.  Secondly, during a telephone conversation of the Hong Kong Police with P’s solicitors, after the latter were engaged by P, Madam Leung of the Hong Kong Police stated that the bank account of the direct recipient of the Sum had been informally frozen by way of a letter of no consent (“LNC”). As mentioned, D1’s solicitors has by letter dated 5 June 2025 stated that the Hong Kong Police has frozen the D1’s Bank Account which contains P’s EUR 500,000 as well as D1’s assets. As of 11 June 2025, Madam Cheng has confirmed the LNC. In these circumstances, I am not satisfied there is any need for interim interim grant of Mareva and proprietary injunction pending the determination of the Summons. If there is any change of circumstances, or indication that the LNC will be lifted, there is liberty to P to apply.

10.  Accordingly, it is not clear to me that this is an appropriate case for interim interim relief to be granted, bearing in mind generally speaking, the court will take whichever course appears to carry the lowest risk of injustice if it should turn out it is wrong (see China Shanshui Cement Group Limited §§18-19). In D2’s short affirmation prepared in the limited time available, it was exhibited and stated therein, that pursuant to parties’ agreement D1 has sent out the “Swift MT 199” to contradict P’s case that Ds had not procured HSBC UK to issue the MT 199. Mr Chan’s response is that the exhibited document is plainly a forged document but at the moment without an opportunity for Ds to file full evidence and considered submissions, the course which appears to carry the least risk of injustice is to maintain the status quo and not grant any interim interim relief. There is unfairness and prejudice to Ds if any draconian orders are granted against them without a real opportunity to fully respond to the serious allegations made against them.

11.  Having heard the parties’ submissions on directions and costs, I direct that the Summons is to be adjourned for substantive argument at the earliest available date to be fixed before any judge, with 3 hours reserved, in consultation with counsel’s diary. Ds have leave to file evidence in opposition within 21 days and P has leave to file any evidence in reply within 14 days thereafter. No further evidence is to be filed without leave of the court. P is to pay Ds’ costs of today attributable to the interim interim relief application which I have summarily assessed at HK$80,000.