CXC GLOBAL JAPAN KABUSHIKI KAISHA v. KADIMA INTERNATIONAL LTD AND ANOTHER

DCCJ 2463/2019

[2019] HKDC 1659

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2463 OF 2019

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BETWEEN

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DECISION

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A. INTRODUCTION

1.  This action arose out of an email fraud.  The plaintiff is the victim of the fraud.

2.  There are 2 summonses for the court to deal with in this decision.

3.  On 1 August 2019, the plaintiff took out a summons (“P’s Summons”) to:

(1) seek default judgment against the 1^st and 2^nd defendants;

(2) join OCBC Wing Hang Bank Limited (“OCBC”) as the 1^st respondent and to seek a vesting order for OCBC to pay a sum of US$108,632.50 (“the Sum”) to the plaintiff out of the defendants’ bank accounts in OCBC.

4.  On 4 June 2019, the amended writ of summons was served on the defendants. The statement of claim was filed on 26 June 2019 and served on the defendants on the same day. P’s Summons was served on OCBC and the defendants on 2 August 2019.

5.  On 19 August 2019, the 1^st defendant filed an acknowledgement of service indicating its intention to contest the proceedings.  The 2^nd defendant has not filed an acknowledgement of service or defence. 

6.  Just 3 days before the hearing of P’s Summons, the 1^st defendant took out a summons dated 17 September 2019 seeking leave to file its defence out of time (“D1’s Summons”). 

7.  A draft defence of the 1^st defendant (“the Draft Defence”) was attached to D1’s Summons.  No affirmation in support was filed in support of the application at the time of filing of D1’s Summons.  A 2^nd affirmation of Mr Moshe Mandelawi (“Mr Mandelawi”), the sole director and shareholder of the 1^st defendant, was filed on 18 September 2019 in support of the application.  The 1^st defendant had previously filed the affirmation of Mr Mandelawi on 9 September 2019 for the purpose of resisting the injunction order obtained by the plaintiff against it. 

B. BACKGROUND

B.1 The Parties

8.  The plaintiff is a Japanese company in the business of providing contingent workforce and human resources consultancy.  It is a member of CXC Global (“CXC Global”), a group of companies providing supplier of contingent workforce solutions.

9.  At all material times, Mr Dave Thomas (“Mr Thomas”) is the founder and chairman of CXC Global and Mr Terushi Yamasaki (“Mr Yamasaki”) is employed as the plaintiff’s Country Manager.

10.  The 1^st defendant is a Hong Kong company.  It maintains a bank account with OCBC (“D1’s Account”).

11.  The 2^nd defendant is a Hong Kong company.  It maintains another bank account with OCBC (“D2’s Account”).

B.2 The Fraud

12.  The plaintiff has never had any kind of business dealing with the defendants.

13.  On 7 May 2019, a series of emails (“the Emails”) were purportedly sent on behalf of Mr Thomas.  In the Emails:

(1) Mr Yamasaki was informed that CXC Global was to make an acquisition, and that the plaintiff was to pay the Sum on behalf of CXC Global.

(2) To arrange for the transfer of the Sum, Mr Yamasaki was asked to liaise with one Mr William Curtin (“Mr Curtin”), a managing partner of Hogan Lovells, at the email address of “william.curtin@lawhoganlovells.com”.

(3) Mr Yamasaki was given the information of D1’s Account and was informed that the address of the 1^st defendant was at “28/F Tower II, Admiralty Centre, 18 Harcourt Rd, Central, Hong Kong” (“the Purported Address”).

14.  On the same day, a man claiming himself to be Mr Curtin called Mr Yamasaki with the number +44 20 xxxx xxxx and gave him instructions regarding payment of the Sum (“the Phone Call”).

15.  Acting on the belief that the Emails were sent by Mr Thomas, and on the information given on the Phone Call by Mr Curtin, Mr Yamasaki, on 7 May 2019, caused the plaintiff to transfer ¥12,937,500 (Japanese Yen) to the plaintiff’s accountant, Links Japan Inc (“Links Japan”). Mr Yamasaki further instructed Links Japan to transfer the Sum to D1’s Account on behalf of the plaintiff (“the Transfer”).  Links Japan effected the Transfer for and on behalf of the plaintiff on the same day.

B.3 Discovery of the Fraud

16.  On 9 May 2019:

(1) Mr Yamasaki called +44 20 xxxx xxxx a number of times, but the calls were not answered.

(2) Mr Yamasaki reported the matter to the Chief Executive Officer of CXC Global and the Group Financial Controller of CXC Global Hong Kong Limited.  Mr Yamasaki then realised that there was no merger or acquisition plan from Mr Thomas, and that the Emails were sent under a different email address, not the usual email address of Mr Thomas.

17.  It then became apparent to the plaintiff that Mr Thomas did not send any of the Emails, nor did he authorise or instruct any persons to do so.  The Emails were sent by someone impersonating Mr Thomas.

18.  Neither did the real Mr Curtin make the Phone Call.  The website of Hogan Lovells shows that:

(1) Mr Curtin is a lawyer and partner of the New York office of Hogan Lovells.

(2) His email address is not at   “william.curtin@lawhoganlovells.com”.

(3) A New York phone number and a Washington DC phone number were given as the phone numbers of Mr Curtin.  These phone numbers do not include +44 20 xxxx xxxx.

19.  Further, the Purported Address of the 1^st defendant is fictitious.  There is no 28/F in Tower II of Admiralty Centre.

B.4 Injunction orders obtained against the defendants

20.  On 17 May 2019, the plaintiff obtained a proprietary and mareva injunction against the 1^st defendant (“D1’s Injunction Order”) and a bankers’ books order against the D1’s Account in an ¬ex parte hearing before Her Honour Judge Winnie Tsui. D1’s Injunction Order was continued by His Honour Judge Kent Yee on 24 May 2019.

21.  On 3 June 2019, the plaintiff obtained a proprietary and mareva injunction against the 2^nd defendant (“D2’s Injunction Order”) and a bankers’ books order against D2’s Account in an ex parte hearing before this court.  D2’s Injunction Order was continued by His Honour Judge Ko on 6 June 2019.

B.5 Funds discovered in the defendants’ accounts

22.  Pursuant to the said bankers’ books orders, the plaintiff obtained account statements and transaction records of D1’s Account and D2’s Account and discovered, inter alia, the following:

(1) In relation to D1’s Account:

(a) immediately before the Transfer, there was only US$8,483.22 in that account;

(b) the Sum was deposited to D1’s Account on 9 May 2019. Bank charges of US$14.29 were debited;

(c) at around 17:09:42 on 9 May 2019, a sum of US$90,000 was transferred from D1’s Account to D2’s Account via internet banking (“the 2^nd Transfer”); and

(d) as at 17 May 2019, there was a sum of US$22,929.76 and a sum of EUR7,019.60 left in that account.

(2) In relation to D2’s Account:

(a) a sum of US$500 was transferred out of D2’s Account on 9 May 2019 subsequent to the 2^nd Transfer;

(b) on 29 May 2019, a sum of US$54,050.38 was transferred out of D2’s Account, leaving a net balance of US$90,000;

(c) on 31 May 2019, interest of US$0.87 was credited to D2’s Account; and

(d) the US dollar balance remained at US$90,000.87 thereafter.

C. DISCUSSION

C.1 Order of dealing with the summonses

23.  At the hearing of the summonses before me on 20 September 2019, Mr Leon Ho for the plaintiff and Mr Tasman Tam for the 1^st defendant proposed to deal with the matter in the following order:

(1) P’s Summons insofar as it seeks default judgment against the 2^nd defendant and joining of OCBC as the 1^st respondent;

(2) D1’s Summons to file the defence of the 1^st defendant out of time; and

(3) P’s Summons insofar as it seeks default judgment against the 1^st defendant.

24.  The court agreed to the proposed order of hearing the matter.

C.1.1 Default judgment against the 2^nd defendant

25.  The 2^nd defendant being absent from the hearing and OCBC has not sent a representative to attend, I saw no reason why default judgment should not be entered against the 2^nd defendant and OCBC to be joined as the 1^st respondent in order to give effect to the vesting order.

26.  I am satisfied that both the writ and statement of claim together with the P’s Summons have been duly served on the 2^nd defendant and the 2^nd defendant has proper notice of the plaintiff’s application for default judgment against it.  Yet it has chosen not to defend the matter.

27.  It is trite that in an application under Order 19, rule 7 of the Rules of the District Court, Cap 336H (“RDC”) the court must give judgment according to the pleadings alone: Hong Kong Civil Procedures 2020 Volume 1, §19/7/11.

28.  The plaintiff’s pleaded case against the defendants is one based on unjust enrichment and money had and received, through a claim of proprietary constructive trust.  On the plaintiff’s pleaded case, it is clear that the plaintiff paid out the Sum because it was fraudulently induced by the mistaken fact that Mr Thomas instructed the plaintiff to pay the Sum to the 1^st Defendant’s Account to make an acquisition.  The Sum was transferred from D1’s Account to D2’s Account within a short time on the same day. 

29.  It has been well established that money paid under mistake of fact is prima facie recoverable provided that the payer did not intend the payee to have the money in any event, the money was not paid for good consideration and the payee has not in good faith changed its position: see Prescient Corporation v Dunse Trading Ltd [2019] HKDC 735 at §17, citing Barclays Bank Limited v W J Simms Son & Cooke (Southern) Ltd & Anor [1980] QB 677, at 692B per Goff J (as his Lordship then was) and Guaranty Bank and Trust Company v Zzzik Inc Limited, HCA 1139/2016, unreported, 18 July 2016 at §27.

30.  In the present case, I am satisfied that the plaintiff was cheated out of the money and the 2^nd defendant was unjustly enriched for the money had and received by it.  I find that the 2^nd defendant did not provide any good consideration for the Sum and that it had in good faith changed its position.  This case falls within the classic situation of Prescient Corporation, supra and the 2^nd defendant should be made accountable for the Sum.

31.  I further find that the Sum was held on trust by the 2^nd defendant for the plaintiff.   When the property is obtained by fraud, equity imposes a constructive trust on the fraudulent recipient, so that money is recoverable and traceable in equity: see Prescient Corporation, supra at §19, citing Mesirow Financial Administrative Corporation v Best Link Industrial Co Limited, HCMP 1846/2015, unreported, 25 January 2016 and Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 at 716C.

32.  Even in the very unlikely scenario that the 2^nd defendant was not a party to the email fraud, I find its state of knowledge is such as to make it unconscionable for it to retain the Sum.  Under such circumstances, the plaintiff still has a tracing remedy against the 2^nd defendant: see Prescient Corporation at §20.

33.  Lastly, I am of the view that a declaratory relief against the 2^nd defendant will give fullest justice to the plaintiff in this case: see Hong Kong Civil Procedures 2020 Vol 1 §15/16/2 and §19/7/20.

34.  In order to give effect to the vesting order, I also consider that OCBC should be joined as the 1^st respondent in this case.

35.  Hence, I made the following orders against the 2^nd defendant and OCBC at the hearing on 20 September 2019:

“1. OCBC Wing Hang Bank Limited be joined as the 1st respondent in this case;

2. No defence having been served by the 2^nd defendant herein, final and interlocutory judgment be entered for the plaintiff against the 2^nd defendant upon the following terms:

(1) A declaration that the 2^nd defendant holds the sum of US$90,000 on trust and/or constructive trust for the plaintiff;

(2) A declaration that the funds in an integrated bank account (number: 4187xx-xxx) with OCBC Wing Hang Bank Limited and their traceable proceed thereof are held on trust and/or constructive trust for the plaintiff;

(3) OCBC Wing Hang Bank Limited do pay the sum of US$90,000 and their traceable proceeds thereof to the plaintiff out of the 2^nd defendant’s account through its solicitors Messrs K&L Gates; and

(4) The 2^nd defendant do pay the plaintiff’s costs of this action including the costs of this application up to and including this judgment, with certificate for counsel.”

36.  At the end of hearing that part of P’s Summons, I also made a summary assessment on the costs incurred by the plaintiff at HK$139,000.  The 2^nd defendant was ordered to pay the plaintiff such sum to represent its costs as a result of bringing the case against the 2^nd defendant.    

C.2 D1’s Summons to file its defence out of time

C.2.1 Legal principles involved

37.  Mr Ho for the plaintiff has referred me to the case of General Field Investment Limited v Cha Hoi Lam & Anor [2019] 1 HKLRD 371, where His Honour Judge Kent Yee has set out the relevant steps in dealing with similar situations:

(a) the summons for time extension to file the defence out of time should be considered before the summons for default judgment;

(b) the court should look at all relevant matters and consider the overall justice of the case in considering an extension of time application;

(c) the court should consider the merits of the purported defence; and

(d) at the end, the court should focus on whether there was any excusable explanation for the failure to file defence within time, and whether reasonable defence was shown in the purported defence: See §§9, 10, 13 & 37.

38.  While Mr Tam for the 1^st defendant does not dispute the approach of HH Judge Kent Yee in General Field Investment Ltd, supra, he referred the court to the case of Wong Wai Man (黃暐民) (formerly known as Sik Shui Hoi (釋瑞開)) v Cheung Pak Hing (張伯興) & Anor, unreported, DCCJ 1744/2017, (Deputy District Judge WH Wong; 30 April 2018), where the following principles have been laid down at §§11-13:

“11. Firstly, when a draft defence consisting just bare denials of the plaintiff’s case is handed to the Court only at the hearing of the plaintiff’s application for judgment in default of defence and the defendant’s cross application for time to file a defence, the position is that this will generally prevent the plaintiff from entering judgment (see HKCP 2018 Vol 1 n 19/7/4 at p 498).

12. As to whether production of a draft defence is a “must” before the Court can exercise its discretion to grant extension of time for filing of defence and to refuse granting default judgment, I agree with the view of Deputy High Court Judge Anson Wong SC in Alibaba Group Holding Ltd. & Anr v Ant Financial Group Co, Ltd [2017] HKCFI 651 that it is not. What the Court must do is to “consider all the circumstances and conduct a balancing exercise in light of the two conflicting principles identified by the Court of Appeal in The Decurion [2012] 1 HKLRD 1063”.

13. The two conflicting principles the Court of Appeal identified in The Decurion are these (para 11 of the judgment):-

(a) A party being required to observe the procedural rules, the default of which may result in judgment being entered against it;

(b) A party should not be deprived of an adjudication on the merits due to a procedural default unless there is prejudice to the other party which cannot be compensated by costs.”

39.  I have no problem to accept the above principles save perhaps to add the observation of the Court of Appeal in The Decurion which emphasised that neither principle should be rigidly applied and the correct approach is to “consider all the circumstances of the case and not confine the decision to the application of a universally applicable rule of thumb”: See §14 of Wong Wai Man (黃暐民), supra.

40.  At the end of the day, it is clear that the court must take into all the circumstances of the case and conduct a balancing exercise in light of the two conflicting principles identified by the Court of Appeal in The Decurion.  Delay in filing the defence is one of them but it is not the most important factor.  Of course, the longer the delay the more the defendant will be expected to be able to justify it with good reasons.  The more important factor in my view is whether the proposed defence contains any merits.  If it does not, then the court generally will not give leave to the defendant to defend the case and allow default judgment to be entered.  Obviously, the overall circumstances and overall justice of the case must be taken into account also.         

C.2.2 The 1^st defendant’s delay in filing the Draft Defence

41.  At an earlier hearing before me on 6 September 2019 when the 1^st defendant sought leave to file and serve the affirmation of Mr Mandelawi to resist the Injunction Order against it, Mr Tam for the 1^st defendant informed this court that the 1^st defendant would be filing its defence in the case as soon as possible.  Given the fact that the statement of claim was served on the defendant on 26 June 2019, the 1^st defendant already had had almost 2.5 months to consider the plaintiff’s claim and to prepare its defence then.  Yet, it was not until 3 days before the hearing of P’s Summons that the 1^st defendant took out D1’s Summons to file the defence out of time.  The 2^nd affirmation of Mr Mandelawi in support was not filed until around 4:30 pm on 18 September 2019, giving the plaintiff and the court only one clear day to read and digest the document.   

42.  In other words, there was a delay of almost 3 months before the 1^st defendant took out D1’s Summons.

43.  Mr Tam for the 1^st defendant admitted that Mr Mandelawi first had notice of the present proceedings on 27 May 2019, some 10 days after the writ and the D1’s Injunction Order were served on the 1^st defendant’s registered address.  However, the notice of intention to defend was only filed by the 1^st defendant on 19 August 2019.

44.  Mr Tam while accepting that the 1^st defendant was late in both filing the notice of intention to defend and its defence, he claims the delay in filing defence is primarily caused by the lateness of 1^st defendant in entering into these proceedings.

45.  As said, this would not be the only factor that the court should look at. The court should look at all the circumstances of the case and carry out a balancing exercise before coming to a conclusion of whether a defendant should allow to file his defence out of time.

C.2.3 The Draft Defence

46.  The Draft Defence has pleaded, inter alia, the following:

(1) The sole shareholder and director of the 1^st defendant, Mr Mandelawi, is at all material times an Israeli Jew residing in Guangzhou, China: §3;

(2) CXC Global had no acquisition plan involving the 1^st defendant: §12(ii);

(3) The Sum was remitted from Links Japan to D1’s Account: §6;

(4) No less than US$18,632.50 out of the USD balance of the D1’s Account, represented the value of the Sum received from Links Japan: §9(iv);

(5) Mr Isaac Cohen (“Mr Cohen”), an Israeli Jew residing in Ashdod, Israel, is and has been a customer of the 1^st defendant since about 2016. Since then Mr Cohen came to acquaint Mr Mandelawi: §10(i);

(6) On about 8 May 2019, Mr Cohen telephoned Mr Mandelawi asking for a “friendly gesture” from Mr Mandelawi in helping to transfer some funds of Mr Cohen to several persons in Mainland China: §10(ii);

(7) Mr Mandelawi agreed to do so on a “friendly and gratuitous basis” but through the bank accounts of the 1^st defendant: §10(iii);

(8) On about 9 May 2019, Mr Mandelawi noted that the Sum (minus bank charges) was remitted from Links Japan, and he telephoned Mr Cohen and queried the source of the Sum.  Mr Cohen said he was the one who arranged and was responsible for this transfer, and allegedly assured Mr Mandelawi that there was nothing to be worried about: §10(iv);

(9) Mr Mandelawi transferred US$90,000 from D1’s Account to D2’s Account. Mr Mandelawi claimed that the 2^nd defendant was a money exchange broker or remittance agent: §10(v);

(10) Mr Mandelawi caused the 1^st defendant to transfer US$22,000 from the 1^st defendant’s bank account at Bank of China to another money exchange broker or remittance agent: §10(vi);

(11) The two money exchange brokers or remittance agents then transferred a total of RMB 730,142 to the bank accounts of Mr Mandelawi, his wife, his sister-in-law, and a person unbeknownst to the 1^st defendant (“the 1^st Batch of Recipients”).  These sums were further transferred to three individuals: §10(vii) and 10(viii);

(12) In about late May 2019 ie after the D1’s Injunction Order has been granted, Mr Cohen confessed that he defrauded the plaintiff into transferring the Sum to the D1’s Account: §11(iii);

(13) The 1^st defendant instituted proceedings in Ashkelon, Israel against Mr Cohen to recover the Sum.  On 30 June 2019, judgment was entered against Mr Cohen upon his admission to the 1^st defendant’s claim and his undertaking to repay inter alia the Sum to the 1^st defendant on or before 21 February 2020: §§11(iv) & (v); and

(14) The 1^st defendant denied that it sent the Emails and made the Phone Call to Mr Yamasaki: §12(i), (iii) & (v).

47.  The 1^st defendant denies that it is obligated to repay the Sum to the plaintiff because the following matters pleaded in the Draft Defence:

(1) The 1^st defendant is an innocent recipient of the Sum and had bona fide dissipated the Sum, and/or is a bona fide purchaser of the Net Sum for value: §14(ii);

(2) The 1^st defendant has bona fide changed its position to the extent of the Net Sum: §14(iii); and

(3) The 1^st defendant was not involved in any fraudulent scheme: §§14(ii), 16(ii) & 16(iii).

C.2.4 The 1^st defendant’s explanations

48.  Mr Mandelawi in his 2^nd affirmation tries to explain the delay.  He claims that although he is a Jew originally from Israel, he has been   residing in Guangzhou in the Mainland for over 10 years.  He would only travel to Hong Kong only once every month or every two months for business purpose and for running errands for his family, etc.  He admits that while the writ and other court documents in relation to the Injunction Order were properly served on the 1^st defendant’s registered address on 17 May 2019, the matter did not come to his attention until 27 May 2019 when he visited Hong Kong.

49.  He claims that after taking the documents back to the Mainland and reading them, he then made a telephone call to the solicitor in charge of the case at Messrs K&L Gates, to see if he could settle the matter with the plaintiff.  He claims that he then entered into “genuine attempts” of negotiations with Mr Sacha Cheong (“Mr Cheong”) of the plaintiff’s solicitors. He relies on the exchange of the telephone call made on 28 May 2019 and the subsequent email correspondence between him and Mr Cheong from 28 May 2019 to 31 May 2019 (which was mentioned in §§6 to 14 in Mr Cheong’s 2^nd affirmation filed on 3 June 2019) as evidence of “genuine attempts” to settle the matter out of court.

50.  The 1^st defendant further relies on that fact that Mr Mandelawi had instructed Israeli lawyers to commence a claim in Israel against the whom he claims as the real fraudster Mr Cohen which resulted in a judgment entered in the 1^st defendant’s favour: (see §11(iii) to (v) of the Draft Defence). The 1^st defendant claims that if Mr Cohen had already made payment pursuant to the Israeli Judgment, then the plaintiff and the 1^st defendant might well have successfully settled the present case.  Mr Tam submits therefore that it could not be said that the 1^st defendant was taking a lax attitude at all.

51.  In addition, the 1^st defendant says that its delay in fact caused no prejudice to the plaintiff.  The 1^st defendant claims that the proprietary injunctions against the 1^st defendant and the 2^nd defendant have caused the freezing of a total bank balance beyond its primary claim of US$108,632.50. Had it been that urgent for the plaintiff to secure judgment in its favour, it says one would expect the application for default judgment to be taken out right on the 24^th July 2019 (exactly 28 days after the service of the statement of claim), but this was not the case. Neither was there notice of intention to enter judgment served to the 1^st defendant before the P’s Summons was taken out[1].

52.  Lastly, the 1^st defendant argues that this is also not a case where there would be further delay caused to the proceedings, as the 1^st defendant’s case has been succinctly formulated in the Draft Defence.

C.2.5 The court’s findings on the 1^st defendant’s delay

53.  With respect, I do not find Mr Mandelawi’s explanations on the delay in filing of the Draft Defence convincing at all.

54.  First, we all know that the distance between Guangzhou and Hong Kong is relatively short.  With different types of modern transport and means of communication, it will be extremely easy for Mr Mandelawi to retain and give instructions to lawyers in Hong Kong.  In any event, it will take Mr Mandelawi at most a couple of hours to travel from Guangzhou to Hong Kong to sign any documents.  Alternatively, he can send any signed documents by courier.

55.  Further, I do not find Mr Mandelawi’s purported attempts to settle the matter with Mr Cheong genuine at all.  Having looked through the exchange of emails between him and Mr Cheong, I formed the distinct impression that they are merely attempts to buy time and delay the matter on the part of the 1^st defendant.  The crunch came after Mr Cheong prepared the draft deed of settlement and sent it by email to Mr Mandelawi for his signature (referred to by the 1^st defendant in §11(ii) of the Draft Defence).  His reply was that he did not want to bear the plaintiff’s costs and he “needed more time”.  He last contacted Mr Cheong by email on 30 May 2019.  Needless to say the 1^st defendant had never paid anything under the draft deed of settlement.

56.  As regards to the 1^st defendant’s claim that Mr Mandelawi had instructed lawyers to commence a claim against Mr Cohen in Israel and there was no lax in his attitude, I do not find this genuine neither.  When he first contacted Mr Cheong on the telephone on 28 May 2019, he promised to refund the money which he said was “stolen by the staff of one of (1^st defendant’s) customers.”  The “friendly and gratuitous assistance” to an acquaintance has now been raised in the Draft Defence.  Thus, his defence is totally inconsistent with what he had asserted to Mr Cheong in the beginning.  In my judgment, the entire proceedings started in Israel is a self-serving act which does not explain the delay in filing the Draft Defence.  I shall return to this matter in greater detail when I discuss the merits of the 1^st defendant’s Draft Defence below.

57.  As to the without prejudice point, I do not agree with Mr Tam’s submission.  The plaintiff’s prejudice is that despite the fact that it has successfully recovered US$90,000 from D2’s Account, it is still some US$18,632.50 short of the Sum it had been cheated out of.  I think one must not lose sight of the fact that the plaintiff is the victim of an email fraud and the money was rightfully theirs in the first place.  This is not like in a commercial dispute where the parties are dealing in arm’s length and the money has been wrongfully retained by one of the parties.  Further, the plaintiff has incurred considerable amount of legal costs to get to this stage so far.  Any further delay for it to recover the money which are rightfully theirs in the first place should in my view be avoided.  While such prejudice may be compensated by costs, this is not the most important consideration in a filing a defence out of time application in my view.    

58.  As to the 1^st defendant’s last point that there will be no further delay if the court allows the 1^st defendant to file the Draft Defence, I do not consider that this is one of the factors that the court needs to take much notice of in the context of an email fraud case. 

59.  In the aforestated circumstances, I am of the opinion that there was inexcusable delay on the part of the 1^st defendant in filing the Draft Defence in this case.   

C.3 Merits of the 1^st defendant’s defence

60.  Despite the very forceful submissions made by Mr Tam on its behalf, I do not find the 1^st defendant’s Draft Defence credible at all. 

61.  First, I agree with the plaintiff that, although Mr Mandelawi claims that he and the 1^st defendant had nothing to do with the Emails and the Phone Call, he clearly had a close connection with Mr Cohen, whom on Mr Mandelawi now says is the fraudster: (see §10(i) & (iii) of the Draft Defence). Given the speed the money was transferred out from D1’s Account to D2’s Account, I would go further to say that there must be a much closer relationship between the two than Mr Mandelawi prepares to admit. 

62.  Second, while the 1^st defendant asserts that its participation in the transfer of the Sum was on a “friendly and gratuitous basis”, I find that this “service” involved at least the following steps highlighted by Mr Ho in his submission:

(1) monitoring D1’s Account, such that after the Sum was deposited to D1’s Account on 9 May 2019, US$90,000 of the Sum was transferred to D2’s Account on the same day at around 17:09:42: (§8(1)(c) of the statement of claim);

(2) arranging further transfers of the sum to another purported money exchange brokers: (§10(vi) of the Draft Defence);

(3) procuring the 1^st Batch of Recipients to receive the Renminbi equivalent of the Sum: (§10(vii) of the Draft Defence); and

(4) arranging the 1^st Batch of Recipients to transfer funds to three other individuals: (§10(viii) of the Draft Defence).

63.  Seeing in such light, I find Mr Mandelawi could not be as innocent as he claims to be.

64.  Third, as a matter of law, the 1^st defendant can be found as a constructive trustee of the Sum as a knowing recipient where it wilfully and recklessly failed to make the inquiries an honest and reasonable man would make: JS Microelectronics Limited v Achhada Dilip G [2013] 1 HKLRD 334, at §19, citing Baden v Société Générale pour Favoriser le Developpement du Commerce et de l’Industrie en France SA (Note) [1993] 1 WLR 509, 575 to 576, category (iii).

65.  In this connection, I agree with Mr Ho for the plaintiff that there are a number of steps that the 1^st defendant could have, but failed to take, even on its own case:

(1) asked for the identity of Links Japan;

(2) asked why Mr Cohen would receive funds from Links Japan, and why Links Japan would need to transfer money to D1’s Account instead of Mr Cohen’s personal or corporate bank accounts;

(3) to accept on the face value of the response purportedly given by Mr Cohen that “there was nothing to be worried about”: §10(iv) of the Draft Defence;

(4) asked about the identities of the ultimate recipients of the funds; and

(5) request documentations from Mr Cohen (sales voucher, loan agreement etc) to show that the Sum from Links Japan was “clean money”.

66.  Instead of making the above what I would consider as reasonable enquiries for anyone who suddenly found a large sum of unexplained funds in his account, Mr Mandelawi caused the funds to be transferred out of D1’s Account within a day.  There is no explanation why the money transfer had to be done in such hurried manner.  There was simply no convincing and credible explanation from the 1^st defendant at all.

67.  Mr Tam for the 1^st defendant in reply submits that the court must not lose sight of the fact the statement of claim contained only a general averment of knowledge without any particulars from which the 1^st defendant is alleged to have categories (ii) and/or (iii) of Baden knowledge. Thus, the 1^st defendant could have had simply pleaded a bare denial and still safely brought itself within the general position at Wong Wai Man (黃暐民), supra.

68.  With respect, I do not agree.  I think one must not lose sight of the fact that this is a classic email fraud case where the modus operandi is to make use of one account to quickly transfer the money obtained by fraud to another account (or more than one account) in order to make it difficult for the victim to trace the cheated fund.  I do not consider it is necessary for the plaintiff to rely on the “further particulars” of circumstances out of which the 1^st defendant is alleged to have the requisite knowledge as submitted by Mr Tam.  In other words, I do not think it is necessary for the plaintiff to complete its cause of action against the 1^st defendant without referring to the Draft Defence.  Of course, the “particulars” provided in the Draft Defence help to confirm the fallacy and hollowness of the 1^st defendant’s defence.  It does not “complete” the knowledge of the plaintiff as alleged.

69.  I also reject the 1^st defendant’s claim that the plaintiff has failed to appreciate the overall context, namely, the nature of the 1^st defendant’s business and the nature of the transfer of the US$108,632.50: (see §4(ii) of the Draft Defence).  I find the whole defence put up by the 1^st defendant is a self-serving exercise trying to present the 1^st defendant as an innocent party.  However, I find the whole story is so much against common sense and inherent probabilities that it is practically no more than moonshine.  I find that it is a sham and simply does not hold any truth at all.

70.  In the aforesaid premises, I find the 1^st defendant’s conduct fell short of what an honest and reasonable man would have done in the circumstances.  I find the 1^st defendant is a constructive trustee of the Sum.

71.  Last but not the least, on the 1^st defendant’s own case, the plaintiff submits since the 1^st defendant has already obtained judgment against Mr Cohen and he has undertook to repay inter alia the Sum to the 1^st defendant: (§11(v) of the Draft Defence), the following passages in Goff & Jones: The Law of Unjust Enrichment (9^th Edition) (“Goff & Jones”) become relevant:

(1) A defendant can escape liability in unjust enrichment where his position has so changed that it would be inequitable in all the circumstances to require him to make restitution, or alternatively restitution in full: Goff & Jones at §27-01;

(2) The defence of change of position generally applies where the benefit transferred from the claimant to the defendant has been “irretrievably lost” so that the courts must choose which of the parties should bear this loss: Goff & Jones at §27-03;

(3) The transactions entered by a defendant do not count as detriment if they can be unwound: in the words of an Australian judge, a qualifying change of position “must be legally or practically irreversible or there must be significant difficulties in reversing the change”: Goff & Jones at §27-21, citing Alpha Wealth Financial Services Pty Ltd v Frankland River Olive Co Ltd (2008) 66 ACSR 594, at §202.  In K & S Corp v Sportingbet Australia (2003) 86 SASR 312, Besanko J held at §160 that if the defendant will have a right of recovery against the ultimate wrongdoer / fraudster, there is no change of position, because any expenditure or loss is reversible;

(4) It was held by the High Court of Australia that “irreversible detriment” should itself be the test to determine whether a defendant’s circumstances have changed to such an extent that he should be entitled to the defence of change of position.  While the English Court did not adopt a general test of irretrievability, the English Court held that “it may be relevant to consider whether the expenditure or loss relied upon is reversible, and (if so) how easily the defendant could take steps to reverse it”: See §27-23 of Goff & Jones.

72.  The plaintiff submits that as the 1^st defendant did not suffer from any change of positon, the 1^st defendant has no defence against the plaintiff’s claim of unjust enrichment.

73.  The law on change of positon has been succinctly summarized by Deputy District Judge Gary CC Lam in Globenet Droid Ltd v Hong Kong Hang Lung Electronic Company (A Firm) [2016] 2 HKLRD 863, at §59:

“Summary

59. In summary, the following legal principles in relation to the defence of bona fide change of position can be distilled:

In general

(1) “[T]he defence is available to a person whose position has so changed that it would be inequitable in all the circumstances to require him to make restitution, or alternatively to make restitution in full”.

(2) The rationale of the defence is to “strike a fair balance between the plaintiff ’s interest in restitution and the defendant’s interest in making spending decisions freely without fear that a claim in unjust enrichment might later invalidate the assumptions that he makes about the means at his disposal”.

In respect of knowledge

(3) “Good faith” is a broad concept incapable of exact definition. Much depends on the circumstances in which he changed his position and the extent of his knowledge about how the payment came to be made. Examples of absence of good faith include (a) “a failure to act in a commercially acceptable way”, (b) “sharp practice of a kind that falls short of outright dishonesty”, and (c) “dishonesty”.

(4) Where the payee has grounds for believing that the payment to him may have been made unjustly (for example, by mistake), but cannot be sure, good faith may well dictate that an inquiry be made of the payer. The nature and extent of the inquiry called for will depend on the circumstances of the case.

(5) Cases of knowing receipt may be drawn on to understand the concept of good faith in the defence.

(6) Relative fault between the payer and payee has no place in English law.

In respect of change of position

(7) The change of position has to be caused by the enrichment, generally, in that he would not have entered into the transaction but for the enrichment. Reliance is usually required.

(8) Bearing this causation requirement in mind, in general, only expenditures that are not in the ordinary course of business of the payee can be regarded as change of position.

(9) Further, change of position in question usually causes detriment to the payee and the detriment has to be practically or legally irreversible or significant difficulties would arise in reversing the detriment.

(10) Following from (9) above, in general, payment of debts or acquisition of assets readily re-saleable is not regarded as change of position.”

74.  Mr Tam submits that since there are no decided cases in Hong Kong on the particular issue of whether the change of position is reversible if the intermediate recipient has a right of recovery against the wrongdoer, this is a legal issue which has to be resolved at trial after extensive submissions from parties. Mr Tam did however refer me to 2 local judgments where the issue of reversibility has been mentioned.  They included Globenet Droid Ltd v Hong Kong Hang Lung Electronic Company (A Firm) referred to in the preceding paragraph at §§58 & 59(9); and Grupo Pacifica Incorporada v Worldwide Marine Product Ltd & Ors, unreported, HCA 2640 of 2014 (Recorder Houghton SC; 24 September 2018).    

75.  Further, Mr Tam submits that even if the case of K&S Corporation, supra, is to be read as establishing a principle that a right of recovery means the lack of disenrichment (as a matter of Australian law), its difference with the English position is very significant because:-

(i) factually, Mr Cohen had not made a single payment to the 1^st defendant and the payment deadline is still several months ahead.  It remains uncertain, at this time, whether payment will eventually be made (whether in part or in full).  It is also a matter of evidence as to how difficult would it be for the 1^st defendant to otherwise enforce the Israeli Judgment. In other words, it is pre-mature to say that the 1^st defendant’s enrichment (which is not admitted) has already been reversed;

(ii) the Israeli Judgment as entered against Mr Cohen on the basis that the 1^st defendant then was about to execute the Deed, thus explaining why the judgment sum is US$108,632.50 plus costs incurred by the plaintiff under the terms of the Deed. The 1^st defendant’s right of recovery against Mr Cohen in the Israeli Judgment therefore appears to be premised on the 1^st defendant settling and agreeing to pay the plaintiff. Now that the Deed was not executed, it begs the question whether Israeli Judgment is liable to be set aside due to the apparent lost of right of recovery, and if the 1^st defendant would have any right of recovery at all. These are matters of foreign law; and

(iii) further, if the plaintiff is able to enter default judgment and obtain vesting order against the 1^st and 2^nd defendants, whether the difference in nature of reliefs claimed by the plaintiff, ie proprietary vs unjust enrichment, affects the 1^st defendant’s right of recovery, if any, in Israel against Mr Cohen, is yet another matter of foreign law. The case of K&S Corporation, supra, simply lacks this foreign element.

76.  With respect to Mr Tam, all the above so called “factual difference” is more technical than real.  As said, I find the entire Draft Defence as a self-serving act which tries to justify the role played by the 1^st defendant in this email scam, without which the fraud could not be perpetuated. I find the entire Israel proceedings and the judgment obtained has been created as a smoke screen by the 1^st defendant in order to try to justify its so called “innocent” role played in the scam.  It does not carry any ring of truth to it. 

77.  I accept the plaintiff’s submissions that, whether the Australian standard or the English standard is adopted, the 1^st defendant clearly did not suffer from any change of position:

(1) The 1^st defendant admits that it has already obtained judgment against Mr Cohen on “inter alia, the Sum”: (§11(v) of the Draft Defence).  Any transfer of the funds purportedly pursuant to Mr Cohen’s instructions cannot amount to detriment, because the 1^st defendant’s transfer of funds out was not only reversible, but has actually been reversed.

(2) If the 1^st defendant is not required to return the Sum to the plaintiff, the 1^st defendant will have a net gain after Mr Cohen has repaid the Sum to the 1^st defendant.

78.  For the above reasons, I find the 1^st defendant did not suffer from any bone fide change of position and has no defence against the plaintiff’s claim of unjust enrichment. 

C.4 What does the overall circumstances and justice require?

79.  Summing up the above, I come to the conclusion that the overall circumstances and justice in this case should not permit the 1^st defendant to file the Draft Defence out of time.  I therefore will dismiss D1’s Summons with costs in favour of the plaintiff, such costs to be summarily assessed by the court.

D. P’s Summons to enter default judgment

80.  Based on the above discussed matters, I am satisfied that on the plaintiff’s pleaded case, the plaintiff has made out a case based on unjust enrichment and money had and received, through a proprietary constructive trust, against the 1^st defendant in this case.

81.  Therefore, I make an order in terms of P’s Summons with costs against the 1^st defendant, such costs to be summarily assessed by the court. 

82.  For the purpose of assessing the costs of D1’s Summons and P’s Summons, the plaintiff is directed to lodge its statement of costs with the clerk of this court within 7 days with copy to the 1^st defendant and the 1^st defendant do lodge any statement of objection within 7 days thereafter with copy to the plaintiff. 

83.  Lastly, I would like to thank counsel on both sides for their helpful assistance.