HAMISH SCOTT MURPHY v. YOKO ISHIBASHI

HCMP 494/2026

[2026] HKCFI 2300

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 494 OF 2026

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BETWEEN

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DECISION

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Procedural Background

1.  On 27 March 2026, upon the Plaintiff’s ex parte application, I granted a local Mareva injunction against the Defendant up to the value of JPY892,080,000.

2.  The Mareva injunction was granted pursuant to section 21M of the High Court Ordinance in support of the Japanese matrimonial proceedings, under which the Plaintiff recently obtained a favourable monetary judgment against the Defendant. The Mareva injunction specifically covers the funds held in an account maintained with HSBC in Hong Kong (the “HSBC Account”).

3.  The return day hearing took place before me on 2 April 2026. Having heard extensive submissions advanced by counsel, I took the view that:-

(1) There was no urgency to discharge the Mareva injunction, and the balance of justice lied in favour of continuing the same.

(2) However, it is arguable that (i) the Japanese judgment might not be final and conclusive at the time when the ex parte application was made; and (ii) there was no material non-disclosure on the part of the Plaintiff.

(3) Since it is arguable that the Mareva injunction is liable to be discharged, it might be oppressive to require the Defendant to make ancillary disclosure when the matter is yet to be determined.

4.  In these premises:-

(1) I did not order the Defendant to make ancillary disclosure immediately.

(2) I ordered that the Plaintiff’s summons dated 30 March 2026 seeking (i) continuation of the Mareva injunction and (ii) ancillary disclosure against the Defendant be adjourned for substantive argument.

(3) I provided directions for the parties to file further evidence.

5.  The Plaintiff also took out a summons dated 31 March 2026 pursuant to section 21 of the Evidence Ordinance (Cap 8) seeking a Banker’s Books order against HSBC for producing the documents relating to the HSBC Account, which was fixed before me at the aforesaid return day hearing on 2 April 2026.

6.  However, the Plaintiff’s summons dated 31 March 2026 (which was opposed by the Defendant) was not issued and served with 2 clear days’ notice.

7.  As such, upon counsel’s invitation, I adjourned the said summons to the present hearing for disposition.

Legal Principles

8.  Mr James Wood (for the Plaintiff) and the Mr Tony Chow (for the Defendant) referred me to the Court of Appeal’s decision in Pacific King Shipping Holdings Pte Ltd v Huang Ziqiang [2015] 1 HKLRD 830. At paras 28 to 32 of the judgment, Poon J (as Poon CJHC then was) stated:-

“28. What concern this appeal specifically are those principles which govern disclosure against a third party bank in the context of a domestic Mareva injunction granted in aid of some foreign proceedings. In this regard, whether or not the case involves a proprietary claim makes a marked difference.”

…

31. If, however, the case does not involve a proprietary claim, the position is different. As noted by the learned editors in Gee on Commercial Injunctions, 5^th Edition, at §22.039 :

“(i) Case (1): purposes for which the information may be needed

In cases not based on a proprietary claim it is unusual for the claimant to seek information from third parties for the purpose of the court proceedings concerning the granting or continuation of Mareva relief. However, such situations can occur; eg there may be an issue as to whether certain assets belong beneficially to the defendant, and therefore should be subject to a Mareva injunction, or information may be needed to enable the court to formulate injunctions against several defendants in appropriate terms, as in A v C, or to make a Mareva injunction fully effective (eg by enabling the court to specify particular assets in the order which can then be notified to non-parties holding the defendant’s assets). It may be that information is needed because the defendant cannot be relied upon to obey the court order and it is necessary to take steps to preserve the assets in the hands of non-parties.” (Emphasis supplied)

32. The main underlying consideration for ordering disclosure is to prevent abuse by the defendant to frustrate or defeat the very purpose of the Mareva injunction : see A v C [1980] 1 QB 956, per Goff J (as he then was) at p 959E-F. Absent any evidence of abuse such as non-compliance of the Mareva injunction, the court will normally refuse to order further disclosure in additional to the standard disclosure.”

(emphasis added)

9.  Along the same vein, in RACP Pharmaceutical Holdings Ltd v Li Xiaobo (CACV 139/2007, 19 September 2007) at para 15, Le Pichon JA stated:-

“As already explained, the last sentence is misleading because the plaintiff did not ask for ‘tracing relief’ in its writ. Absent evidence that the defendant had failed to comply with the Mareva injunction, there is no basis for further discovery. Discovery directed at finding out whether the defendant had ‘dissipated’ or ‘concealed’ the purchase monies, in other words, ‘policing’, is not a legitimate purpose for making a disclosure order. See Bekhor & Co Ltd v Bilton [1981] 1 QB 923 at 944G-945D.”

(emphasis added)

Deliberation

10.  There has been no suggestion that the Plaintiff seeks to mount a proprietary claim against the Defendant in respect of the funds in the HSBC Account.

11.  As stated in Mr Wood’s skeleton submissions[1], the purpose of pursuing the proposed Banker’s Book order “is to confirm the value of the marital assets deposited in the [HSBC Account] so that clarity be obtained that the [Mareva] Injunction is serving a meaningful purpose and is an effective remedy to prevent dissipation”.

12.  Despite Mr Wood’s skeleton submissions, as stated in the draft order lodged on behalf of the Plaintiff, the following documents and information are sought from HSBC:-

(1) all account numbers of the account(s) in the name of the Defendant maintained with HSBC;

(2) the names, personal details and the contact details of the person(s) giving instructions for the transactions relating to the Defendant’s accounts maintained with HSBC;

(3) the amount of the money maintaining in each of the Defendant’s bank accounts maintained with HSBC as of the date of the court’s order, including the aforesaid HSBC Account; and

(4) copies of the monthly bank statements of the Defendant’s accounts maintained with HSBC for the period from 30 June 2018 onwards.

13.  There is an overwhelming impression that the present application is an attempt to “police” the Mareva Injunction. It appears that the Plaintiff is seeking to find out, inter alios, (i) whether the funds in the HSBC Account had been dissipated and the person(s) who should be responsible therefor; (ii) whether there are other bank accounts that ought to be subject to the Mareva injunction granted by the court; and (iii) the whereabouts of the funds that were transferred out of the HSBC Account and other accounts (if any) after 30 June 2018. As pointed out in Pacific King at para 32 and RACP Pharmaceutical at para 15, in the absence of evidence showing that the defendant had failed to comply with the Mareva injunction, there is no basis for further discovery, and “policing” is not a proper basis for making discovery against a third party.

14.  In the present case:-

(1) There is no evidence showing that (i) the Defendant had breached or failed to comply with the terms of the Mareva injunction that I granted on 27 March 2026; and (ii) the Defendant would be in a position to remove the funds in the HSBC Account.

(2) Furthermore, the question of whether the Defendant shall make ancillary disclosure is yet to be determined. As mentioned, at the return day hearing on 2 April 2026, I took the view that it is arguable that the Mareva injunction is liable to be discharged, and, as such, it might be oppressive and intrusive to require the Defendant to make ancillary disclosure at this stage.

15.  In my view, what the Plaintiff seeks to do is to utilize a Banker’s Book order to “police” the Mareva injunction when the court is reluctant to order immediate ancillary disclosure against the Defendant while the matter is pending final resolution. It appears to me that this is abusive. Further, in light of the aforesaid authorities, this is impermissible, unless there is evidence showing that the Defendant had failed to comply with the Mareva injunction.

16.  However, at the hearing, Mr Wood contended that Pacific King is a decision concerning an application for a Norwich Pharmacal order, and hence has no application in the present context, which concerns an application for a Banker’s Book order pursuant to section 21 of the Evidence Ordinance.

17.  I do not agree with Mr Wood’s contention. It seems to me that Mr Wood merely seeks to draw a distinction without a difference. In my view, the rationale behind Pacific King and RACP Pharmaceutical is that questions regarding “policing” are primarily governed by the mechanism of ancillary disclosure under the Mareva injunction. Thus, when there is no evidence showing that the defendant has failed to comply with the terms of the Mareva injunction, the plaintiff should not seek discovery against third parties. It may only be justifiable for a plaintiff to seek disclosure against third parties when there is evidence showing that defendant is abusive and/or not prepared to abide by the court’s orders.

18.  At the hearing, Mr Wood also sought to rely on A v C [1980] 1 QB 956.

19.  However, as pointed out by Mr Tony Chow, A v C was expressly referred to in Pacific King at para 32. As pointed out in paragraph 8 above, Poon J (as Poon CJHC then was), referring to A v C, acknowledged that the underlying consideration of ordering disclosure is to prevent abuse. However, His Lordship went on to point out that:-

“Absent any evidence of abuse such as non-compliance of the Mareva injunction, the court will normally refuse to order further disclosure in additional to the standard disclosure…” (emphasis added)

In the premises, it is clear that A v C does not support the proposition that it is justifiable for the court to order disclosure from third party in the absence of evidence showing that there was abusive conduct on the part of the defendant.

20.  For completeness, it should be pointed out that as the Mareva injunction has been continued, the Plaintiff’s interests are adequately safeguarded. In this connection, it is reiterated that there is no evidence showing that the Defendant had breached the terms of the Mareva injunction and/or would be able to dispose of her assets in Hong Kong, including the funds in the HSBC Account.

21.  For all the above reasons, I refuse to grant any order against HSBC for the purpose of enabling the Plaintiff to “police” the Mareva injunction that I granted on 27 March 2026.

22.  Nevertheless, at the hearing, Mr Wood stressed that the Plaintiff’s foremost objective is to find out whether there is still a significant amount of money in the HSBC Account, such that it would be worthwhile and meaningful to continue the present proceedings. This indication is consistent with what is set out in Mr Wood’s skeleton submissions[2].

23.  In my view, the purpose suggested by Mr Wood does not amount to “policing” the Mareva injunction that I granted. Under this purpose, the Plaintiff does not seek to ascertain (i) whether the terms of the Mareva injunction have been complied with; and (ii) whether there are other assets that should be subject to the Mareva injunction.

24.  As Mr Wood emphasized, the Plaintiff merely wishes to find out whether it would be proportionate to spend time and costs in continuing to prosecute these proceedings, and to this end, it suffices for the Plaintiff to seek production of the bank statement showing the balance of the fund sitting in the HSBC Bank Account as of 27 March 2026, ie the day when I granted the Mareva injunction.

25.  The Plaintiff’s request in this regard is a humble one, and I have sympathy with him. As I understand, the Plaintiff’s stance is that the only asset of the Defendant in Hong Kong that is known to him is the HSBC Account. However, the Plaintiff has been unable to have direct access to the updated information in respect of the HSBC Bank Account. If the reality is such that there is no fund in the HSBC Bank Account, it would be futile for the Plaintiff to continue prosecuting these proceedings, and he would be chasing shadows.

26.  In this connection, it can be argued that the Plaintiff should have taken steps to ascertain the balance of the HSBC Account before he commenced the present proceedings. However, it is important not to lose sight that it is the Plaintiff’s case that the Defendant has been dishonest and there has been a real risk of dissipation. In the circumstances, it is understandable why the Plaintiff commenced these proceedings immediately after he obtained a favourable judgment under the Japanese proceedings. I am not of the view that the Plaintiff’s litigation conduct has been unreasonable.

27.  It is true that at the previous return day hearing on 2 April 2026, I refused to order ancillary disclosure against the Defendant. As explained, this was primarily because I took the view that it might be oppressive to require the Defendant to take affirmative steps to disclose her personal information and to verify the same by affirmation when she has an arguable case for discharging the Mareva injunction.

28.  In my view, the Plaintiff’s application for a bank statement showing the amount of fund sitting in the HSBC Bank Account as of 27 March 2026 is not oppressive at all. As the Defendant has refused to render cooperation, the Plaintiff merely seeks the assistance of a third party (ie HSBC) for a piece of information that is readily available[3]. The application is a narrow one. More fundamentally, the Defendant is not required to take any affirmative steps to comply with the court’s order; nor is the Defendant is required to disclose any personal information.

29.  I cannot see how the Defendant could be prejudiced:-

(1) If there is a significant amount of money sitting in the HSBC Account, the Defendant would not be prejudiced. By virtue of the Mareva injunction order that I granted on 27 March 2026, the HSBC Account has been frozen already, and the Defendant cannot dispose of the funds therein. I cannot see how the Defendant could be prejudiced by the mere fact that the Plaintiff knows about the balance sitting in the HSBC Account.

(2) If there is no money (or merely a minimal amount of money) sitting in the HSBC Account, there is no sensible reason why the Defendant does not wish the Plaintiff to know about the position. There is a real possibility that the Plaintiff would take the view that it is no longer justifiable to continue these proceedings. This would be advantageous to the Defendant as it would no longer be necessary for her to incur time and costs in contesting these proceedings. In this scenario, the court’s resources would be saved as well.

30.  I accept that the Defendant is not under any obligation to make disclosure at this stage. I also appreciate that the present proceedings arose from a bitter matrimonial dispute.

31.  However, I am unable to discern any practical reason why the Defendant shall insist that the Plaintiff be kept in the dark in regard to the balance of the HSBC Account. This is not to the advantage of both parties, and I am not of the view that the stance of the Defendant on this matter is reasonable. If the Plaintiff is merely chasing shadows in these proceedings, the earlier he knows, the better for everyone.

32.  Since the Defendant has not been cooperative and reasonable, the Plaintiff needs to resort to the assistance of HSBC. This is understandable.

33.  For all the above reasons, I exercise my discretion and order HSBC (which does not oppose the Plaintiff’s application) to produce the bank statement showing the amount of fund sitting in the HSBC Bank Account as of 27 March 2026 within 7 days.

34.  With a view to ensuring that the Defendant’s position in the Japanese proceedings (which is now subject to a further appeal) will not be prejudiced, Mr Wood indicated that the Plaintiff will undertake not to use the documents and information provided by HSBC for any other purposes until the said appeal in the Japanese proceedings is disposed of.

35.  This is reasonable, and I accept the Plaintiff’s undertaking. The order that I grant is subject to the aforesaid undertaking[4].

36.  Neither party is wholly successful. I make a costs order nisi that the costs in respect of the summons dated 31 March 2026 be in the cause.

37.  I thank Mr James Wood and Mr Tony Chow for their helpful assistance.