UNIVERSAL CAPITAL BANK v. DEEP SEA SEAFOOD TRADING LTD

HCA 1213/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1213 of 2015

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REASONS FOR DECISION
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Orders made

1.  On 10 December 2015, I ordered that:

(1) the Inter Parte Summons issued on 20 August 2015 by the intended intervener be dismissed;

(2) the Garnishee Order to show cause dated 21 July 2015 be made absolute; and

(3) the plaintiff’s costs be taxed on party and party basis and be paid by the intended intervener and the defendant.

2.  I now give my reasons.

Relevant background

3.  On 1 June 2015, the plaintiff, a bank in Montenegro, issued the Writ in this action against the defendant, a private company incorporated in Hong Kong, then having its registered office at Flat A, 3^rd floor, Excelsior Building, 358‑366 Nathan Road (“D’s registered office”).

4.  The plaintiff claimed US$889,500 as money had and received by the defendant which was unjustly enriched by the transfer of EUR$678,900.21 as follows:

4 August 2014 Plaintiff on forged instructions “from” Firstright Development Limited’s (“Firstright”) transferred EUR$678,900.21 to Bank account of China Jiahao Group Development Limited (“China Jiahao”) with Hang Seng Bank Limited

5 August 2014 From China Jiahao’s account with Hang Seng Bank Limited US$889,500 was transferred to Bank account (“HSBC account”) of the defendant with The Hongkong and Shanghai Banking Corporation Limited (“HSBC”)

5.  On 16 July 2015, the plaintiff obtained judgment in the sum of US$889,500 against the defendant in default of notice of intention to defend.  The defendant and the intended intervener accepted that the default judgment was a regular judgment.

6.  On 21 July 2015, the plaintiff obtained the Garnishee Order to Show Cause attaching all debts due from HSBC to the defendant judgment debtor to answer the default judgment in the sum of US$889,500.

7.  By letter dated 30 July 2015, HSBC advised the defendant that HSBC had frozen the following amounts in the defendant’s account:

(1) HK$3,216,743.12;

(2) HK$67.00; and

(3) US$250,671.12.

8.  On 20 August 2015, the intended intervener issued a summons asking:

(1) for leave to join in the proceedings as intervener, to intervene and to defend; and

(2) to set aside the default judgment.

9.  Francis Kong & Co felt able to act for both the intended intervener and the defendant.

10.  By an affirmation affirmed on 20 August 2015, Madam Au‑Yeung Mui Lai Veronica (“Au‑Yeung”) of the defendant deposed, among others, that:

(1) The defendant was incorporated in March 2014 and she was the sole shareholder and director.  The defendant’s registered office was also the defendant’s business address. (§§2, 4)

(2) In May 2014, she was told by her “accountant” that the costs of dissolution of the defendant would be around HK$60,000 to HK$70,000 which she could not afford. (§§5, 6)

(3) “Shortly afterwards”, Mr Lam Cho Hon (“Lam”) asked and she agreed to “borrow” (sic) the HSBC account to Lam for free for Lam to operate his money exchange business because “the bank account of his money exchange shop had just been cancelled by the bank, and it would be very hard for him to open another bank account for his money exchange business …” (§7)

(4) In around May 2014, she handed over the device for internet banking and all “relevant” passwords in respect of the HSBC account to Lam so that he could use the HSBC account starting from June 2014. (§10)

(5) On about 30 June 2014, Lam “asked to (sic) me” to sign an authorisation letter on behalf of the defendant in respect of the aforesaid borrowing (sic) of the HSBC account to the intended intervener”. (§11)

(6) “Thereafter”, she had “no knowledge about all the transactions in the HSBC account, and since then, all the monies in the HSBC account belong to the intended intervener.” (§12)

11.  By an affirmation affirmed on 20 August 2015, Lam deposed, among others, that:

(a) He was the sole proprietor of the intended intervener. (§2)

(b) “[China Jiahao] was one of the corporate clients of the intended intervener in Mainland China”. (§6)

(c) “According to [Lam’s] knowledge, on about 4 August 2014, C M Ma for and on behalf of China Jiahao gave instructions to C S Cheuk to help him to remit EUR600,000 odds (sic) (‘the Euros’) to 4 accounts designated by him in Mainland China.” (§13)

(d) “After confirming that C M Ma had converted the Euros into USD899,500 and transferred the same to the HSBC account, on about 5 August 2014, C S Cheuk converted the same into RMB and remitted RMB2,000,000 to the bank account of KOIKENGHUEI with 中國農業銀行廣東分行 bearing account number 6228‑4800‑8410‑3961‑615, RMB2,000,000 to the account of TANHEETIT with ABC深圳國貿支行bearing account number 6228‑4501‑2800‑7681‑278, RMB1,000,000 to the bank account of TEEWECHANG with中國農業銀行深圳華強分行, and the balance to C M Ma’s bank account with 深圳建設銀行建設路支行 bearing account number 6717‑0072‑0001‑5322‑186 as instructed by C M Ma respectively. There is now produced and shown marked me (sic) ‘LCH‑3’ a copy of the mobile phone text messages between C M MA and C S Cheuk on 4 to 5 August 2014 evidencing the aforesaid instructions.”  (§14)

(e) “By reason of the aforesaid matters, the subject matter of the present proceedings, ie the monies in the sum of USD899,500, had been converted into RMB and remitted to the aforesaid 4 bank accounts in China on about 5 August 2014, and therefore, the monies now deposited in the HSBC account are not related to the Plaintiff nor his client.” (§15)

Setting aside regular judgments

12.  On an application to set aside a regular default judgment, the major consideration is whether the defendant has shown a defence on the merits to which the court should pay heed, not as a rule of law, but as a matter of common sense, since there is no point in setting aside a judgment if the defendant has no defence, and because, if the defendant can show merits, the court will not prima facie desire to let a judgment pass on which there has been no proper adjudication, Hong Kong Civil Procedure, 2016, para 13/9/13.  It is not sufficient to show a merely “arguable” defence that would justify leave to defend under order 14.  The defendant must show that he has “a real prospect of success”. To do so, he must satisfy the court that his case and the evidence that he adduces in support of it is potentially credible and carries some degree of conviction, Hong Kong Civil Procedure, 2016, para 13/9/14.

Joinder of parties

13.  Order 15, rule 6(2) of The Rules of the High Court, Cap 4A, provides that:

“Subject to the provisions of this rule, at any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application —

…

(b) order any of the following person to be added as a party, namely —

(i) any person who ought to have been added as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.”

Plaintiff’s case

14.  The plaintiff’s case is supported by contemporaneous banking documents, the authenticity of which is not in dispute.

15.  The transfer on 4 August 2014 of EUR678,900.21 to the account of China Jiahao with Hang Seng Bank Limited was made as a result of a spoof email.  The email was sent using the email address jeslyn.cmy@gwlbsi.com, not from the designated email address jesly.cmy@gwibsi.com.  Thus, the plaintiff did not have the authority of its customer (Firstright) to make the transfer and it had no right to debit the account of Firstright.  Through its solicitor, the plaintiff confirmed that it did not debit the amount from Firstright’s account (§12 of Affirmation of Law Wing Chung Vincent). The plaintiff, not Firstright, suffered loss and was the correct party to sue as plaintiff.

16.  The transfer of EUR678,900.21 was evidenced by contemporaneous banking documents (Exh LWCV‑2).

17.  The transfer on 5 August 2014 of US$889,500, part of EUR678,900.21, from China Jiahao’s account with Hang Seng Bank Limited to the HSBC account was also evidenced by contemporaneous banking documents (Exh LWCV‑5).  Moreover, the deposit of US$889,500 into the HSBC account on 5 August 2014 is admitted by Lam, see §11(e) above.

Intended intervener’s case

18.  The defendant claimed that it could not afford HK$50,000 to H$60,000 in May 2014.  The defendant did not disclose its assets and liabilities.  Nor did it disclose the May 2014 bank statement of the HSBC account.  The defendant claimed that it did not carry on any business but did not explain why the HSBC account was a “Business Direct” account. 

19.  The defendant claimed that the HSBC account had been “borrowed” to the intended intervener as from 1 June 2014. Inexplicably (and there is no explanation), the address of the account holder printed on the HSBC August 2014 bank statement for the HSBC account was the defendant’s, not the intended intervener’s, address.

20.  Au‑Yeung claimed that after 30 June 2014, she had no knowledge “about all the transactions in the HSBC account (§10(e) and (f) above).  There was no explanation why she seemed to have knowledge about transactions in June 2014.

21.  The defendant’s name is “Deep Sea Seafood Trading Limited” and Au‑Yeung’s name is “Au‑Yeung Mui Lai Veronica”. The August 2014 bank statement of the HSBC account recorded the following transactions:

Date	Transaction Details	Deposit
4 Aug	From Deep Sea S Tra轉賬收入	7,000,000.00
1 Aug	From Au Yeung Mui La轉賬收入	124,300.00
1 Aug	From Au Yeung Mui La轉賬收入	123,917.00
4 Aug	From Deep Sea S Tra轉賬收入	1,667,100.00
5 Aug	From Deep Sea S Tra Gold/Exchange Credit	2,553,771.00
5 Aug	From Deep Sea S Tra Gold/Exchange Credit	15,471.80
6 Aug	From Deep Sea S Tra轉賬收入	280,000.00
6 Aug	From Deep Sea S Tra轉賬收入	2,033,020.00
8 Aug	From Deep Sea S Tra轉賬收入	240.000.00
13 Aug	From Au Yeung Mui La轉賬收入	225,728.00
14 Aug	From Deep Sea S Tra轉賬收入	200,000.00
15 Aug	From Deep Sea S Tra轉賬收入	54,090.00
20 Aug	From Deep Sea S Tra Gold/Exchange Credit	309,536.00
21 Aug	From Deep Sea S Tra轉賬收入	150,000.00
22 Aug	From Deep Sea S Tra轉賬收入	100,000.00
25 Aug	From Deep Sea S Tra轉賬收入	271,516.00
25 Aug	From Deep Sea S Tra轉賬收入	200,000.00

22.  It is reasonable to suspect that “Au‑Yeung Mui La” and “Deep Sea S Tra” may be connected to the defendant and its sole shareholder and director, Au‑Yeung.  There is no denial of any connection and there is no explanation.  This discredits the defendant’s and the intended intervener’s case that the defendant had nothing to do with the amount claimed.

23.  What is more important is that there is no banking documents showing that the alleged payments to the four accounts in Mainland China was from the HSBC account or any other account.  If the intended intervener had carried on genuine and bona fide money exchange business, banking documents should exist showing the transfer or deposit of more than RMB$5 million into bank accounts in China.  None has been produced.  The attempt to prove the payments out of millions in RMB by producing what purports to be mobile phone text messages is pathetic.

Conclusion

24.  The defendant’s and intended intervener’s case and the evidence that they adduced in support of it is not potentially credible and does not carry any degree of conviction.  They have no real prospect of success.

25.  For these reasons, I dismissed the Inter Parte Summons issued on 20 August 2015 by the intended intervener and ordered that the Garnishee Order to Show Cause dated 21 July 2015 be made absolute.