BACKORDER SOLUTIONS LLC v. CHINA CITIC BANK INTERNATIONAL LTD

DCMP 3087/2025

[2025] HKDC 1297

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3087 OF 2025

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BETWEEN

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DECISION

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1.  This is the Plaintiff’s application against China Citic Bank International Limited (“Bank”) for a Norwich Pharmacal order and a gagging order. It is the Plaintiff’s case that it was a victim of fraud that had transferred a sum of US$66,540.00 into the fraudster’s account in the belief that it was paid to its supplier for settlement of an invoice.

Factual Background

2.  The Plaintiff is a company carrying on the business of selling medical equipment and incorporated in accordance with the laws of the United States of America. Since around June 2023, the Plaintiff began to purchase from a manufacturer in the People’s Republic of China (“P.R.C.”) called Zhejiang Longyou Landmedical Technology Co. Ltd., (“Zhejiang Longyou”). At all material times, the Plaintiff engaged Mr Corbett Bonicelli (“Cory”), an independent contractor, to handle the business dealings for and on behalf of the Plaintiff with the representative of Zhejiang Longyou, Ms Sai Liu (“Sai”), via WhatsApp.

3.  All the exchanges set out below were between Cory and Sai via WhatsApp. It is the Plaintiff’s case that Sai’s WhatsApp account was hacked by the fraudster who impersonated Sai and communicated with Cory for less than 24 hours which led to the transfer of funds into the fraudster’s account.

4.  On 29 June 2023, Sai provided Cory with shipment details of an order previously placed by the Plaintiff. Later on the same day, Cory confirmed with Sai that the Plaintiff would make payment in the sum of US$66,540.00 by way of transfer on 30 June 2023 (US Time). Sai later sent to Cory Zhejiang Longyou’s Profoma Invoice which contained the following:

“Bank Account Information:

Bank Name:	CHINA CONSTRUCTION BANK LONGYOU BRANCH, QUZHOU BRANCH
Bank Address:	196 Taiping West Road, Longyou County, Quzhou City, Zhejiang Province
Account No:	3305 0168 7227 0000 1556
Swift Code:	PCBCCNBJ
Company Name:	ZHEJIANG LONGYOU LANDMEDICAL TECHNOLOGY CO., LTD
Company Address:	No. 6 Fenggae Road, Longyou Industrial Park, Zhejiang Province
Company Tel:	0086-0570-7888330
Company Fax:	0086-0570-7888330”

5.  On 30 June 2023, another Proforma Invoice was sent by Sai to Cory followed by a text: “Please pay to the document I am sending now. please check it”. It is the Plaintiff’s case that it was at this point of time that Sai’s WhatsApp account was hacked and the messages were sent by the fraudster impersonating Sai.

6.  The said Proforma Invoice contained exactly the same information except for the bank account information which was as follows:

“Bank Account Information:

Bank Name:	CITIC Bank of Hong Kong
Bank Address:	61-65 DES VOEUX ROAD CENTRAL, THE CHINESE BANK BUILDING
Account No:	7 7 2 - 1 - 1 1 2 3 1 1 0 1
Swift Code:	018
Account Name:	FAN ZHUOZHANG
Company Tel:	0086-0570-7888330
Company Fax:	0086-0570-7888330” [1]

(“Bogus Invoice”)

7.  It is evident that the bank account information has been changed from Zhejiang Longyou’s bank account with China Construction Bank in the P.R.C. to a personal account under “Fan Zhuozhang” held with the Bank in Hong Kong (“Fan’s Account”).

8.  After sending the Bogus Invoice, the fraudster repeatedly reminded Cory to pay attention to the updated bank account information and to transfer the money as soon as practicable. Pursuant to the fraudster’s instructions and on 30 June 2023, the Plaintiff successfully transferred a sum of US$66,540.00 to Fan’s Account.

9.  When Cory sent the record showing the successful transfer on 3 July 2023, Sai asked Cory who Fan Zhuozhang was. Sai confirmed that she did not send those messages thereby revealing the scam. The Plaintiff immediately reported the incident to the Hong Kong Police via e-Report.

10.  On 11 July 2023, the Plaintiff was informed by the Hong Kong Police that there remained a significant credit balance in Fan’s Account which has been frozen. Later in September 2023, the Police verbally informed the Plaintiff’s solicitors inter alia that the balance frozen was in the sum of US$66,522.00 and no one has yet been arrested in relation to the incident.

The Present Proceedings

11.  By an Originating Summons dated 9 June 2025, the Plaintiff commenced the present proceedings for a Norwich Pharmacal order and a gagging order against the Bank. It is unclear why this would take 2 years although it has engaged a legal firm to represent it in Hong Kong back in September 2023.

12.  Having been served with the Originating Summons and by a letter dated 8 July 2025, the Bank informed the Plaintiff’s solicitors that it takes no stance on the matter and will not file an acknowledgment of service or attend any hearing.

13.  The applicable principles for Norwich Pharmacal relief are well-settled. In A Co v B Co[2], Ma J (as he then was) set out the elements necessary to warrant such an order to be granted:

(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; where a tracing claim is likely to be made there must be a serious possibility that the discovery sought must 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; an order must be specific and restricted to those documents or those classes of documents that are necessary to enable the plaintiff to preserve or discover assets.

14.  Based on the above facts, I am satisfied that there are cogent and compelling evidence that the Plaintiff has been defrauded to deposit US$66,540.00 into Fan’s Account on 30 June 2023. In the absence of evidence to the contrary, I also accept that Fan’s Account has been frozen with a balance of US$66,522.00 preserved since July 2023. Having considered all the evidence, I am satisfied that a Norwich Pharmacal order for the information sought by the Plaintiff should be granted.

15.  Firstly, the disclosure of the identity and information of the holder of and person(s) authorized to operate Fan’s Account as well as persons relating to the fund flow of Fan’s Account would likely reap substantial and worthwhile benefits to enable the Plaintiff to commence proceedings against Fan and/or other wrongdoer(s) and to serve court documents on the identified wrongdoer(s) without further delay.

16.  Secondly, it is crucial for the Plaintiff to have the current balance of Fan’s Account to be provided by the Bank and not to rely on the unverified information which was communicated verbally by the Police. What remains in Fan’s account may well be the Plaintiff’s assets that need to be preserved.

17.  Thirdly, I am also satisfied that the discovery sought is not unduly wide given that the account has been frozen not long after the subject transfer was made and that almost the whole sum of the Plaintiff’s funds remained in Fan’s Account before it was frozen by the Police.

18.  On the other hand, I cannot see any justifiable grounds for a gagging order to be made. The granting of a Norwich Pharmacal order in a fraud-related case does not ipso facto justify a gagging order. It is an exceptional remedy which should not be lightly granted. Each case depends on its own facts.

19.  In the present case, the incident occurred more than 2 years ago and the account has been frozen since early July 2023. It would be unreasonable to suggest that the wrongdoer still does not know that he has been pursued by his victim. Most importantly, given that almost the whole sum of the Plaintiff’s monies is still in Fan’s Account being frozen, there is practically nothing the wrongdoer could do that would frustrate the Plaintiff’s claim or any investigations being carried out if a gagging order is not granted. In the circumstances, I am not persuaded by the Plaintiff that it has made out a strong case and I refuse to grant the gagging order.

20.  I would therefore make an order in terms of the draft order as amended at the hearing.