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D E C I S I O N
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1. The plaintiff claims to be the victim of a fraud, whereby certain persons posing as Hong Kong Immigration Department officials and Mainland officials induced her to transfer her money at other banks into an account she held with HSBC, from which six withdrawals were subsequently made on 16 and 17 April 2020 without her knowledge, totalling $3.03 million. The fourth withdrawal was a remittance to an account with BOC.
2. On 5 May 2020, the plaintiff obtained ex parte a proprietary and Mareva injunction against four defendants, including the 2nd defendant as holder of the account that received the fourth withdrawal. The order imposed restraints on the 2nd defendant in relation to the sum of and up to the amount of $460,000.
3. The claim in the writ against the 2nd defendant subsequently issued is for unjust enrichment and/or fraud in relation to the receipt by the 2nd defendant of $460,000 via his bank account with BOC on 17 April 2020. The relief sought in the statement of claim filed on 3 July 2020 as against the 2nd defendant is the restitution of the amount of $460,000 on the ground of unjust enrichment and/or money had and received.
4. The plaintiff subsequently found out, inter alia, that, from the 2nd defendant’s BOC account, the sums of $350,000, $100,000 and $50,000 were transferred to the bank account at BOC of one Kan Kar-yi Rosie on 20, 23 and 23 April 2020 respectively. The plaintiff brought an action in the District Court against Rosie Kan (as the 3rd defendant) in DCCJ 4406/2020 for the sum of $460,000 and reached a settlement on 28 August 2020, whereby Rosie Kan, without admitting liability, agreed to pay the plaintiff $480,000 in full and final settlement of all claims as between them. I am told that the amount has since been paid.
5. On this basis, I agree with Mr Chan who has submitted on behalf of the 2nd defendant that the only claim currently raised as against the 2nd defendant has been satisfied. At the very least, I am not satisfied that there is a good arguable case that the plaintiff has any further principal claim against the 2nd defendant. There may be remaining suspicion on the part of the plaintiff as to the 2nd defendant’s involvement in the initial fraud, but no claim has been pleaded against him and no relief has been sought against him other than the one in respect of which recovery has been made from Rosie Kan.
6. Mr Yung, appearing for the plaintiff, submits that no application to vary or discharge the injunction has been made by the 2nd defendant, but the burden is on his client to justify the further continuation of the injunction. Merely saying that the plaintiff intends to continue to claim against the 2nd defendant to recover monetary loss is not good enough. There is no pleaded claim put before me or any proper evidential basis to substantiate an application for a Mareva injunction on a fresh cause of action such as damages for conspiracy to defraud.
7. As to the existing claim for interest and costs, I do not think they can justify the continuation of the entirety of the injunction against the 2nd defendant. There is, in any event, a provision in the order for payment into court of security in place of the injunction.
8. I therefore order that the injunction shall continue as against the 2nd defendant until payment by the 2nd defendant of $100,000 into court, when the injunction shall cease as against him. The injunction however shall continue as against the 1st, 3rd and 4th defendants until trial or further order.
(Submissions re costs)
9. As regards costs, the plaintiff’s costs as against the 1st, 3rd and 4th defendants shall be in the cause. The plaintiff is to pay two-thirds of the 2nd defendant’s costs of today.
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(Godfrey Lam) |
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Judge of the Court of First Instance
High Court |
Mr Wilson Yung, instructed by Lo, Wong & Tsui, for the Plaintiff
Mr Chan Yip-hei, instructed by JWC Solicitors, for the 2nd Defendant
The 1st, 3rd and 4th Defendants were not represented and did not appear