CHINA NATIONAL GOLD GROUP HONG KONG LTD v. THE HONGKONG AND SHANGHAI BANKING CORPORATION LTD AND ANOTHER

HCMP 1175/2025

[2025] HKCFI 4682

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1175 OF 2025

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REASONS FOR DECISION

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Introduction and Brief Background Facts

1.  By Originating Summons dated 15 July 2025 (“the OS”), the Plaintiff (“P”) seeks against the Defendant (“the Bank”) orders for disclosure in respect of a bank account of Kehong Investment Development Limited (“Kehong Investment”) maintained with the Bank (“the Account”) under the court’s inherent jurisdiction to grant Norwich Pharmacal relief. In particular, the OS seeks the disclosure of documents relating to the Account showing:

(1)  All transfer of money or assets by: (a) Gerald Metals SA (“Gerald Metals”); or (b) Soremi Investments Limited (“SIL”) into the Account for the period between 1 November 2013 to the date of service of the Order (“the Sums”);

(2)  The destination and/or recipients of any money or assets representing the traceable proceeds of the Sums transferred out of the Account for the period between 1 November 2013 to the date of service of the Order; and

(3)  Any accounts with the Bank which hold or have held the traceable proceeds of the Sums transferred out of the Account for the period between 1 November 2013 to the date of service of the Order.

2.  By Summons dated 4 September 2025 (“the Summons”), SIL applied to join as intended 2^nd Defendant to the OS under O.15, r.6 of the Rules of the High Court, Cap.4A (“RHC”).

3.  According to the affirmations filed in support of the OS by P in gist:

(1)  P is a company incorporated in Hong Kong and a wholly-owned subsidiary of China National Gold Group Co., Ltd, a state-owned enterprise;

(2)  P was first introduced to the opportunity to invest in a polymetallic copper-lead-zinc mining and processing project in the Republic of Congo (“Soremi Project”) by the acquisition of shares in SIL from Global Mining LP and Gerald Metals LLC (“Gerald Parties”) in 2010;

(3)  Following negotiations, P and Gerald Parties agreed to jointly operate the Soremi Project by entering into a Share Purchase Agreement for acquisition of 65% of the equity interest in SIL by P (“the Shares”) in 2013 (“SPA”) and a Shareholders’ Agreement (“SHA”) in relation to the operation of SIL in 2014 (“the Soremi Transaction”);

(4)  In about end of April 2024, P became aware of allegations from a whistle-blower (“the Informant”) that the Gerald Parties procured P to enter into the Soremi Transaction by bribing Mr Tong, P’s lead negotiator in the Soremi Transaction via Mr Cai. According to P, Mr Cai (through its corporate vehicle) received “consultancy fees” if and after a deal was reached between P and the Gerald Parties even though there was no legitimate basis for such fees. Mr Tong was closely involved in reviewing and negotiating the terms of the “consultancy agreements” ostensibly between Mr Cai and the Gerald Parties, even though there was no reason for Mr Tong to be involved other than to be a “white glove” (by showing Mr Tong how much commission he would be paid if he facilitated the Soremi Project through Mr Cai);

(5)  Mr Tong was also a principal witness for P in the arbitration proceedings which was commenced by the Gerald Parties against P and SIL in Hong Kong International Arbitration Centre (“HKIAC”) on 13 November 2020 claiming for an order compelling P to transfer the Shares to Global Mining LP and damages for breach of SPA and SHA (“the Arbitration”);

(6)  P lost in the Arbitration and by the First Partial Award and Third Partial Award, P was directed to transfer the Shares to the Gerald Parties. P’s attempt to set aside the awards was rejected by the Hong Kong Court in 2024 and orders recognizing the First and Third Partial Awards were granted in February and March 2025 respectively;

(7)  P had reported the matter to the PRC’s anti-graft watchdog, National Supervisory Commission (“NSC”), in December 2024;

(8)  Mr Tong and Mr Cai were being investigated and under detention in the Mainland from May 2025 on suspicion of bribery;

(9)  In July 2025, P commenced a new arbitration in the HKIAC (“New Arbitration”) against Gerald Parties among others for: (a) rescission of the underlying contracts and previous arbitral awards on the ground they were procured by bribery/fraud; (b) monetary compensation flowing from the loss and damages occasioned by the Gerald Parties’ acts of bribery; and

(10)  P has also applied for a stay of execution of the previous enforcement orders granting leave to enforce the First and Third Partial Awards (“the Stay Application”) on the additional ground that they were procured by fraud/bribery which is to be heard on 7-8 January 2026 by Mimmie Chan J.

4.  The Bank was served inter alia the OS. Through correspondence with P’s solicitors, the Bank has indicated that, subject to their comments, it adopts a neutral stance to the OS. The Bank’s comments have now been incorporated into a Draft Order. The Bank asked to be excused and did not appear.

5.  Mr Ho, counsel appeared for P and Mr Wood, counsel, appeared for SIL at the hearing of the OS and the Summons (“the Hearing”). Having heard the submissions of counsel, I dismissed both the OS and the Summons at the Hearing. These are my reasons for doing so.

Applicable Principles

6.  The applicable principles on joinder under O. 15, r.6(2)(b) of RHC were summarised by K Yeung J in Chen Honqing v Liu Yiu Keung Stephen & Ors [2021] HKCFI 440 at §26 as follows:

(1)  A liberal approach should be given to this rule so as to ensure that, as far as possible, all matters in dispute between the parties are completely and finally determined, and all multiplicity of legal proceedings with respect to any of those matters is avoided;

(2)  Under Limb 1, a party may be added as a party if his rights against or liabilities to any party to the action in respect of the subject matter of the action may be directly affected by any order which may be made in the action;

(3)  Specifically, under O.15, r.6(2)(b)(ii), the intervener is required to show that he has some interest which in some way directly related to the subject matter of the action. A mere commercial interest in its outcome, divorced from the subject matter of the action, is not enough;

(4)  Whilst some interest which in some way directly related to the subject matter of the action is necessary, the existence of a cause of action between the intervener and one of the parties is not a necessary perquisite for the purpose of joinder;

(5)  Even where the interest in the subject matter alleged by the intervener is doubtful, the court is nevertheless prepared to exercise its discretion to allow the joinder so that the alleged interest can be properly tested at trial.

7.  The court will not exercise its discretion in favour of joinder if it is plain and obvious that the joinder of the proposed intervener would be pointless and futile: see ibid, §28.

8.  The applicable principles for Norwich Pharmacal relief are also well-settled:

(1)  It is not a usual order and will not be lightly granted in the absence of powerful factors:

(2)  It is made against an innocent party whose only involvement is to become mixed up in the tortious or wrongful activities of others;

(3)  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;

(4)  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

(5)  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).

9.  In A Co v B Co at §13, the main requirements for Norwich Pharmacal relief were set out:

(1)  There must be cogent and compelling evidence to demonstrate that serious tortious or wrongful activities have taken place (where fraud or similar serious allegations are made, the degree of proof must correspondingly be 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 likely to be made there must be a serious possibility 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.

10.  Furthermore, as mentioned by Chow J (as he then was) in Leung Yiu Ting v MTR Corp Ltd [2020] 5 HKC 550, in Rugby Football Union v Consolidated Information Services Ltd (formerly Viagogo Ltd) [2012] 1 WLR 3333 at §16, Lord Kerr stated the need to make a Norwich Pharmacal order disclosure will be found to exist only if it is a necessary and proportionate response in all the circumstances. However, the test of necessity does not require the remedy to be one of last resort. Whether the relevant information can be obtained from another source is only one of the relevant consideration (see §20).

11.  It is also important to bear in mind that the essential purpose of the Norwich Pharmacal remedy is to do justice which involves the exercise of discretion by a careful and fair weighing of all relevant factors: see ibid, §23 and Rugby Football Union, §17.

Analysis and Disposition

12.  With those principles in mind, I turn to the Summons and the OS.

13.  Mr Wood submitted that on the face of the OS, seeking documents relating to Kehong Investment’s bank account showing the transfer of money or assets from SIL, SIL’s legal interest in the OS is demonstrated. However, I am not satisfied that that in itself is sufficient to demonstrate SIL’s legal interest. Contrary to the suggestion in paragraph 37 of Mr Wood’s Skeleton Submissions, that it is unfair that SIL is “being kept out of its own documents” by P, I cannot see any documents that may be ordered to be disclosed under the OS that are SIL’s documents.

14.  Furthermore, I also cannot see how SIL’s legal interest is directly affected by any order for Norwich Pharmacal relief which may be made in the OS. Whilst Mr Wood was concerned that the documents sought from the Bank will be used by P in support of its bribery case in the New Arbitration and the Stay Application, as acknowledged in Mr Wood’s Skeleton at paragraph 4, the evidence that P seeks in the OS is “to be used in its bribery case against the Gerald Parties and Mr Tong”. No allegation of wrongdoing was made against SIL in support of the OS. This was made clear in the letter dated 21 August 2025 from P’s solicitors, the Skeleton Submissions for the Plaintiff at paragraph 30(b) and confirmed by me with Mr Ho at the Hearing. In so far as Mr Wood submitted that the purpose of the New Arbitration is to unwind the previous awards, and the disclosure sought is to assist P in its bribery allegation in the New Arbitration, whilst I had no reason to doubt SIL’s interest in the New Arbitration, that does not demonstrate SIL’s interest in the OS.

15.  In so far as it was submitted that the receivers of SIL had a duty and interest to have SIL’s affairs investigated in the exercise of its powers under the BVI Receivership Order, and under that Order, P shall provide reasonable assistance to the receivers of SIL, according to the Affidavit of Borrelli filed in support of the Summons, the receivers are still in the process of seeking the Hong Kong’s court recognition of that order. If according to Mr Wood no such order is required then the receivers can pursue any avenue of redress for breach of any BVI Orders and/or seek any further orders against P. It seems to me intervention in the OS taken out by P for orders against the Bank for documents relating to Kehong Investment cannot be the right avenue for redress for the receivers.

16.  As to the fact that the Bank and Kehong Investment have not appeared to contest the OS and it is alleged there is a risk of the court being misled and not fully apprised of all relevant facts and circumstances if SIL is not allowed to view the supporting evidence for the OS, unless it is demonstrated that SIL is a proper party with sufficient legal interest in the OS, even with the non-attendance of party or any opposition, that cannot be a ground for intervention by SIL. Besides, the court will not act as a rubber-stamp even where the matter is uncontested. The court is well aware of the applicable principles for Norwich Pharmacal relief, which are well-established, and is duty bound to astutely apply them to the evidence before it considering all the circumstances.

17.  In any event, given that I was not satisfied that I would grant the orders sought in the OS and would dismiss the OS, it is plain and obvious to me that it is pointless and futile to join SIL as a party to the OS.

18.  For all the above the reasons, I dismissed the Summons at the Hearing. I saw no reason why costs should not follow the event. I did not agree with Mr Wood that the position taken by SIL was like an amicus. No sufficient interest was demonstrated for the proposed intervention and this court did not request any assistance from SIL. I therefore ordered SIL to pay P’s costs of the Summons, which was summarily assessed at HK$90,000, to be paid forthwith.

19.  In respect of the OS, I was not satisfied that I should exercise my discretion in favour of making the order sought, bearing in mind that Norwich Pharmacal orders are extraordinary in nature and is not one that a court would lightly grant in the absence of powerful factors.

20.  At the Hearing, I expressed the view that I had real difficulty to see how the Bank has been caught up or has become involved in the alleged tortious or wrongful activities of the Gerald Parties and/or Mr Tong. I pointed out that, according to P, Mr Cai through its corporate vehicles received alleged bribes and there were invoices issued by Beijing Kehongruizhi to Gerald Metals for US$250.000 on 6 April 2015 and 17 April 2015, and an invoice in the amount of US$750,000 issued by Kehong Investment to SIL and Gerald Metals dated 27 March 2017, but there was no evidence, hearsay or otherwise (unlike the facts of A v B which Mr Ho heavily relied upon but in my view was distinguishable: see the facts at §§17-21) that any payments of bribes were paid into the Account. Mr Ho seemed to have accepted that there was no direct or even hearsay evidence of any alleged bribes being paid into the Account when I raised this matter at the Hearing. I further took the view that despite the submissions of P that Kehong Investment was only incorporated on 1 November 2013, had no record of trading and is likely to be a shell company misused for Mr Cai for receipt and onward transfer of illegitimate funds and that Kehong Investment’s balance sheet from 30 November 2015 showed no receipt of US$500,000 that financial year “strongly suggests that Kehong Investment used [the Account] to route the US$500,000 to affiliates of Mr Cai in the succeeding months” (see First Affirmation of Yan Tao, §§51-52), they do not amount to evidence of receipt of alleged bribes in the Account to show that the Bank has been caught or mixed up in the alleged wrongdoing.

21.  By letter dated 10 September 2025 from P’s solicitors (“the Letter”), after the Hearing, it was stated inter alia that P’s counsel had erroneously accepted that there was no direct evidence of payments having been made to Kehong Investment’s account. It was pointed out that in the Second Affirmation of Yan Tao, §§14-15 there was mention that USD 1.5M was paid by Gerald Holdings LLC to the Account on 21 April 2014 and a payment confirmation was exhibited thereto.

22.  I accept on the authorities submitted in the Letter, in particular Sun Jianqiang v Trans-Island Limousine Services Ltd (unrep) CACV 20/2003, 17 November 2003, §§23-33 and the authorities cited therein, that there is jurisdiction for me to reconsider my decision before the order is drawn up and perfected.

23.  In the present case, I take the view that there is a strong reason for me to reconsider my decision where there has been a plain mistake on the part of the court and a failure of the parties to draw to the court’s attention to a fact that was plainly relevant such that justice requires a reconsideration of this point. However, I do not consider that justice requires a further hearing when the correction of the error and the relevant evidence has now been drawn to my attention by the Letter nor reconsideration of other points which are not affected by my error necessary. On reconsideration, I do accept that it has been demonstrated that the Bank has been caught up or mixed up in the alleged wrongdoing.

24.  However, I still need to be satisfied of the other requirements for the grant of Norwich Pharmacal relief and that the order in terms of the Consent Order should be granted in the exercise of my discretion.

25.  I am not satisfied that in all the circumstances of this case granting the order is necessary and proportionate where with the information already available from the Informant, P’s internal investigations and knowledge of the investigation of and from the information disclosed to it by NSC, the evidence of Mr Zhao (former Gerald Group executive) and other documentary evidence obtained by P, it plainly was able to take out the New Arbitration and the Stay Application.

26.  On P’s own case evidence from the affirmations filed in support of the OS:

(1)  The evidence available “is already strongly indicative of the veracity of the Informant’s account” (First Affirmation of Yan Tao, §43);

(2)  P “already possesses the requisite evidence of (i) widely recognized indicators of corruption, (ii) the existence of the sham consultancy agreement, and (iii) indications of payments having been made to Mr Cai” (ibid, §56); and

(3)  “The documentary record of [P]’s case that Gerald bribed Mr Tong via Mr Cai in order to (i) secure [P’s] investment in the Soremi Project and (ii) ensure Mr Tong continued to act in Gerald’s interests (including throughout the course of the arbitration), is now cogent and compelling” (Second Affirmation of Yan Tao, §31).

27.  In Mr Ho’s written submissions he stated that, “NSC already has concrete and strong evidence showing the receipt of bribes by Mr Tong through Mr Cai” but P has only been authorised to reveal the basic matters (so what is available is more than P has disclosed): see Skeleton Submissions for the Plaintiff dated 4 September 2025, §§18 and 19.

28.  In the Skeleton Submissions for the Plaintiff (opposing SIL’s Intervention) dated 5 September 2025 at §7(4), it was submitted that the requested bank documents would “further bolster” P’s bribery case.

29.  Whilst it was submitted that the disclosure sought would constitute a direct source of evidence of the onward payment of alleged bribe from Gerald Parties to Mr Tong (see Second Affirmation of Yan Tao, §32) and may provide the exact sums received as bribes by Mr Tong or other wrongdoers to particularise any monetary claim against them, I have real reservations whether Norwich Pharmacal relief should be ordered to dot the “i”s and cross the “t”s in claims that P has already been able to take and has already taken against the alleged wrongdoers.

30.  The facts of the present case are far removed from the facts of Leung Yiu Ting where the police was not considered a practicable alternative source of the CCTV footages of what took place in the Prince Edward MTR Station and besides, the footages could only have been obtained after action was taken against the police when at that stage in applying for Norwich Pharmacal relief, the plaintiff could not without the footages properly particularise his intended claim against the police.

31.  In any event, I am of the view that the order sought by P was plainly unduly wide and unnecessary. Apart from documents relating to the Account, in the Draft Order, P sought all documents relating to bank accounts of Kehong Investment maintained with the Bank (“the Accounts”) when there is no evidence or suggestion to show any other accounts of Kehong Investment had received the alleged bribes. The disclosure sought was of all monies in and out of the Accounts, all account opening forms and mandates, information relating to the persons authorised to operate and give instructions in relation to the Accounts, all bank statements of the Accounts, cheques drawn on the Accounts and documents relating to the funds paid into the Accounts etc, which are totally unnecessary for P’s purported purpose to ascertain the final recipient(s) of the alleged bribes paid into the Account and the amount(s). As for the date from which disclosure was sought, this was for the period from 1 November 2013 to service of the court order. This is plainly unduly wide, as even on P’s case, the transfer of the alleged bribe was made on 21 April 2014, and the earliest of the invoices issue to Gerald Metals was 6 April 2015, so there is no evidence of, or reason to believe, there were any transfers into the Account prior to 21 April 2014.

32.  Even though Mr Ho submitted that the Bank has no objection to the making the order in terms of the Draft Order, as mentioned already, the court does not act as a rubber stamp even if an order is unopposed. Any disclosure order wider than necessary would compromise the duty of confidentiality between the Bank and its customer, who is not before this court. I do not accept Mr Ho’s submissions that there is no prejudice to the Bank and Kehong Investment.

33.  In all the circumstances of this case, I was not satisfied, and even on reconsideration am not satisfied, that justice requires the making of an order in terms of the Draft Order.

34.  The OS should be dismissed with no order as to costs.