JIN ZIKAI v. GRIFFIN INTERNATIONAL HOLDING LTD AND ANOTHER

DCMP 480/2024

[2024] HKDC 1914

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 480 OF 2024

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DECISION

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Introduction and Background Facts

1.  I have before me an application by the Plaintiff (“P”) by Summons dated 3 October 2024 (“the Summons”) against China Citic Bank International Limited (“the Bank”) for disclosure of the documents set out in the Summons pursuant to s 21 of the Evidence Ordinance, Cap 8 (“EO”) and the court’s inherent jurisdiction.

2.  P has claimed that he was a victim of an online fraud and sums totalling HK$2,407,000 were transferred out of his account held with Hang Seng Bank (“P’s Account”) to an account held at the Bank (“1^st Tier Account”) from 26 to 28 April 2023.

3.  According to P, he was informed by the Police that:

(1)  on 26 April 2023, a sum of HK$155,000 had been transferred from the 1^st Tier Account to the account of the 1^st Defendant (“D1”) maintained with The Hongkong and Shanghai Banking Corporation (“HSBC”) (“D1’s Account”); and

(2)  on 27 April 2023, a sum of HK$199,900 had been transferred from the 1^st Tier Account to the account of the 2^nd Defendant (“D2”) maintained with Livi Bank Limited (“Livi Bank”) (“D2’s Account”). D1’s Account and D2’s Account have been frozen by the Police.

4.  By Originating Summons filed on 23 January 2024, P claims inter alia the sums of HK$155,000 and HK$199,900 are held by D1 and D2 respectively on constructive trust for P.

5.  P has previously sought and obtained disclosure orders against HSBC and Livi Bank pursuant to an Order of Deputy District Judge Joseph Vaughan dated 28 March 2024. From the bank statements obtained and statements from P’s Accounts, it appears that:

(1)  On 26 April 2023, HK$755,000 was transferred from P’s Account to the account of “Ng Ka Kin” (“Ng”) and HK$155,000 was transferred from Ng to D1’s Account;

(2)  On 27 April 2023, HK$1,000,000 was transferred from P’s Account to Ng and HK$199,900 was transferred from Ng to D2’s Account; and

(3)  On 28 April 2023, two sums of HK$72,000 and HK$580,000 were transferred from P’s Account to Ng.

6.  Further disclosure order was then sought against the Bank. Pursuant to the Order of Deputy District Judge Sabrina Ho dated 19 August 2024, the Bank disclosed the relevant bank statements of the account of Ng held with the Bank (“Ng’s Account”) from 26 April 2023 to 24 May 2023 (“the Statements”) and the last known address of Ng. However according to the affirmation filed in support of the Summons, the Statements revealed that:

(1)  On 26 April 2023, HK$200,000 was transferred from Ng’s Account to “LIU Y*****” which is suspected to be D2 but cannot be verified because the name of the transferee has been redacted;

(2)  On 27 April 2023, HK$199,900 was transferred from Ng’s Account to “LIU Y*****” which was suspected to be D2 but cannot be verified because the name of the transferee has been redacted;

(3)  On 28 April 2023, HK$72,000 was transferred from Ng’s Account to “LIU Y*****” which was suspected to be D2 but cannot be verified because the name of the transferee has been redacted; and

(4)  The aforesaid sums may have been transferred to different accounts of D2.

7.  By the Summons, P seeks: (a) the unredacted full identity of the transferee(s) and transferor(s); (b) the bank account number(s)/FPS account number(s) and bank name(s) of each of the transferee(s) and transferor(s); and (c) the amount(s) and date(s) of the transfer(s), in respect of each withdrawal and deposit between 26 April 2023 and 24 May 2023 of the account number 018-727-1-22361400 held in the name of Ng with the Bank.

8.  The Bank was served the Summons but has indicated by letter dated 10 October 2024, save for requiring 28 days from the service of the order to be made for the disclosure sought, it adopts a neutral stance with regard to the Summons. The Bank has not appeared today.

9.  Ng, the account holder, was served the Summons by P and did not appear today. D1 and D2 were also served the Summons. D1 did not appear and D2 appears, unrepresented, today. In fact, service on the account holder is not a statutory requirement and the court can make an order under s 21 of EO without summoning the bank or any other party: see s 21(2) of EO and Aisan Corporation of America & Anor v Unknown Bank Account Holder(s) with DBS Bank (Hong Kong) Limited [2023] HKCFI 567 at §12. However, due to D2’s appearance today, I did hear from D2 but it seems her submissions did not having any bearing to the Summons.

Applicable principles

10.  The applicable principles governing an order under s 21 of EO are well-established. Although it has been said that a s 21 order is justified where the plaintiff seeks to trace funds which in equity belong to him and of which there was strong evidence that he has been fraudulently deprived, there are 3 limits:

(1)  Firstly, 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)  Secondly, 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.

See CTO (HK) Ltd v Li Man Chiu & Others [2002] 2 HKLRD 875, §§12-13.

Analysis and Order

11.  Applying the above legal principles to the facts of the present case, I am satisfied the orders sought should be granted.

12.  There is strong documentary evidence that P has been fraudulently deprived of his monies which were transferred from P’s Account to the 1^st Tier Account (which may be Ng’s Account) and then further transferred to D1’s Account and D2’s Account.

13.  I am also satisfied that the information sought would likely reap substantial and worthwhile benefit to enable P to preserve, locate and/or recover monies which he has made a proprietary claim against D1 and D2 and/or to identify and/or take legal action against any other wrongdoer(s).

14.  The discovery sought is specifically defined and not unduly wide. I have also taken into account the neutral stance adopted by the Bank who have not suggested any difficulty (save for timing for the disclosure which is taken into account in the Draft Order submitted to me) in complying with the orders sought.

15.  Having balanced the competing interests of the victim and the innocent party (the Bank) caught up in the wrongdoing, the previous court orders for disclosure already made, and mindful that the power to order disclosure should be exercised with great caution, I make an order in terms of the Draft Order as amended by me.