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DCCJ 3316/2025
[2026] HKDC 230
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO 3316 OF 2025
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BETWEEN
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EVERCARE HEALTH LIMITED |
Plaintiff |
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and |
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SO LAI KAN（蘇麗芹）
also known as GOBBY SO |
1st Defendant |
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CHUNG KAI KEI（鍾啟基）
also known as JACKY CHUNG |
2nd Defendant |
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LEUNG TUEN YI（梁端儀）
also known as EVA LEUNG |
3rd Defendant |
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LEUNG LOK MAN（梁樂文） |
4th Defendant |
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(Discontinued) |
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SO YUN WAH |
5th Defendant |
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TSOI WING YIN（蔡詠賢） |
6th Defendant |
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NG KAI MING（吳啟明） |
7th Defendant |
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| Before: |
Deputy District Judge B. Mak in Chambers (Open to public) |
| Date of Hearing: |
10 November 2025 |
| Date of Decision: |
9 February 2026 |
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DECISION
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Introduction
1. The plaintiff is a professional caregiver agency providing matching services for caregivers and care recipients.
2. The 1st defendant joined the plaintiff in August 2022 as account manager and was promoted to senior account manager in January 2024 and consumer account lead in May 2024. Her duties include handling clients, confirming and verifying the service hours rendered by caregivers. She was terminated on 23 April 2025.
3. The 2nd defendant is the husband of the 1st defendant. The 3rd defendant is the mother of the 1st defendant.
4. Investigation into the affairs of the 1st defendant revealed that, inter alia, a total sum of HK$255,470 was paid into the 2nd defendant’s MOX account from 10 January 2025 to 10 April 2025 by fraud.
5. On 13 June 2025, I granted an ex parte Proprietary-cum-Mareva injunction order against the 1st to 4th and 6th defendants.
6. On 17 June 2025, the plaintiff took out an inter parte summons (“the summons”) for the continuation of the injunction order until trial or further order.
7. On 25 June 2025, the 2nd defendant entered an acknowledgment of service of writ of summons contesting the proceedings.
8. At the hearing on 27 June 2025, the 2nd defendant indicated his opposition to the summons.
9. The summons against the 2nd defendant was adjourned for substantive argument before this Court.
10. As the authorities are in English, this Decision is written in English. The 2nd defendant may, if he so wishes, request for an oral interpretation of this Decision by a Court Interpreter.
Legal Principles
11. The legal principles on proprietary injunction and Mareva Injunction are uncontroversial.
12. I would respectfully adopt the legal principles on the grant of a proprietary injunction as summarised by the learned Recorder in Zhang Yan v ASA Bullion Ltd [2019] HKCFI 179:
(1) Where a plaintiff asserts title to property or seeks to trace property which belongs to him, the Court has jurisdiction to grant a proprietary injunction restraining the disposal of that property;
(2) For the grant of a proprietary injunction, there are three elements which the plaintiff has to demonstrate, following the American Cyanamid approach: (a) that there is a serious issue to be tried on the merits; (b) that the balance of convenience is in favour of granting an injunction and (c) that it is just and convenient to grant the injunction. It is not necessary to show any risk of dissipation of assets;
(3) A proprietary injunction must relate to a specific asset held by or under the control of the defendant, or its traceable proceeds, in respect of which a proprietary claim is raised by the plaintiff; and
(4) In order to justify the grant of a proprietary injunction, the plaintiff should ordinarily adduce some reasonable evidence of the existence of the specific asset (or its traceable proceeds) and that the same is being held by or under the control of the defendant. Where the asset forming the subject matter of the proprietary claim has been dissipated and can no longer be traced, a proprietary injunction cannot ordinarily be granted.
13. For the grant of a domestic Mareva injunction, the plaintiff must show:
(1) that he has a good arguable case on a substantive claim over which the court has jurisdiction;
(2) that there are assets within the jurisdiction;
(3) that the balance of convenience is in favour of grant;
(4) that there is a real risk of dissipation of assets, or removal of assets from the jurisdiction, which would render the plaintiff’s judgment of no effect; and
(5) the plaintiff must comply with a strict duty of full and frank disclosure.
See Hong Kong Civil Procedure 2025 Vol 1 at 29/1/65.
The 2nd defendant’s opposition
14. The 2nd defendant filed an affirmation in opposition on 10 September 2025. He stated that he did not know the existence of the MOX account.
15. At the hearing, the 2nd defendant said that his wife (ie the 1st defendant) stole his personal information to open the account. He added that the telephone number 8404 8492 that was used to operate the account initially was not his. His own number is 6099 2744.
16. The 2nd defendant further said that his only account is with HSBC. The said account was not involved in the alleged fraud.
Good arguable case
17. I bear in mind that at the interlocutory stage, the court only has to be satisfied that there is a good arguable case in the sense of a case which is “more than barely capable of serious argument. And yet not necessarily one which the judge believes to have a better than 50% chance of success”. There is also no requirement that the plaintiff has to show that she has a “much better” case or argument than the defendant. In other words, the presence of even a good arguable defence does not necessarily negate a good arguable case: see Target Insurance Co Ltd (Managers appointed under Section 35(2)(b) of the Insurance Ordinance (Cap 41)) v Ng Yu and others [2025] HKCA 150 at para 50.
18. The plaintiff relied on four causes of action, namely, unjust enrichment, proprietary claims, dishonest assistance and unlawful means conspiracy.
Unjust enrichment
19. A claim of unjust enrichment involves four questions, namely, (a) was the defendant enriched; (b) was the enrichment at the plaintiff’s expense; (c) was the enrichment unjust; and (d) is any of the defences applicable: see Shanghai Tongji Science & Technology Industrial Co Ltd v Casil Clearing Ltd (2004) 7 HKCFAR 79.
20. Given that a total sum of HK$255,470 was paid into the 2nd defendant’s MOX account from the plaintiff’s account for no valid reason and the 2nd defendant has not raised any defence, I am satisfied that a good arguable case of unjust enrichment is established.
Proprietary claims
21. For a proprietary claim to be maintained against the recipient of property obtained by fraud, what is required to be established is that the recipient has received property traceable to the fraudster. It is not necessary that the recipient must have committed fraud: see ANZ Commodity Trading Pty Ltd v Excellence Raise Overseas Ltd and others [2025] HKCA 701 at para 127.
22. As the total sum of HK$255,470 was paid into the 2nd defendant’s MOX account by fraud, whether or not the 2nd defendant had taken part or had knowledge of the fraud is not relevant.
23. I am satisfied that there is a good arguable case on proprietary claim.
Dishonest assistance
24. To establish dishonest assistance, the plaintiff is required to prove (a) a breach of trust or fiduciary duty by someone other than the defendant; (b) the defendant’s assistance; (c) dishonesty; and (d) resulting loss: see China Medical Technologies, Inc (in liquidation) and others v Wu Xiaodong and others [2026] HKCFI 276 citing Grupo Torras SA v Al-Sabah [1999] CLC 1469.
25. The fraud was committed while the 1st defendant was employed by the plaintiff. She was in a position of trust and was in breach of it. The money was paid into the 2nd defendant’s MOX account. Notwithstanding the 2nd defendant’s saying that he had no knowledge of the MOX account, there is a seriously arguable case that he rendered assistance in the process.
26. I am satisfied that there is a good arguable case on dishonest assistance.
Unlawful means conspiracy
27. There are four elements in a claim of unlawful means conspiracy, namely, (a) an arrangement or agreement between two or more people; (b) an intention to injure the plaintiff, although there is no need for that intention to be the predominant one; (c) carrying out of unlawful acts pursuant to the arrangement and intention to injure; and (d) resulting in loss or damage caused to the plaintiff: see China Medical Technologies (supra) citing Revenue and Customs Commissioners v Total Network SL [2008] 1 AC 1174 and Pido v Compass Technology Co Ltd [2010] 2 HKLRD 537.
28. The fraud on the plaintiff necessarily involved at least two people, ie the 1st and 2nd defendants. It is seriously arguable that they had an agreement to defraud the plaintiff of the money. The 2nd defendant’s saying that he had no knowledge of the MOX account and hence no agreement or arrangement with the 1st defendant may serve as a defence. However, this does not negate that the plaintiff has a good arguable case against him.
Specific asset in Hong Kong
29. The total sum of HK$255,470 was paid into the 2nd defendant’s MOX account in Hong Kong.
Real risk of dissipation
30. Cheng J in浙江大通輕紡有限公司 v He Bin (何斌) [2022] HKCFI 1987 succinctly summarised the court’s approach in the assessment of risk of dissipation considered by the Court of Appeal in Convoy Collateral Ltd v Cho Kwai Chee & Others [2020] 6 HKC 81 as follows:
(a) The ultimate question is whether a claimant succeeds in showing, objectively, a solid basis for concluding that there is a real risk of unjustified dissipation of assets by a defendant;
(b) What must be threatened is unjustified dissipation; the purpose of a Mareva injunction is not to provide a claimant with security;
(c) In order to establish a sufficient risk of dissipation, it is not enough merely to establish a good arguable case that the defendant has been guilty of dishonesty; the question is whether such dishonesty points to the conclusion that assets may be dissipated. It is also necessary to take account of whether there appear to be properly arguable answers to the allegations of dishonesty;
(d) The assessment as to whether there is a real risk of dissipation involves an evaluative and predictive judgment. The evidential burden can be satisfied by drawing proper inferences from a holistic consideration of all the circumstantial materials that are indicative of risk, including matters which point against such risk;
(e) The courts have been vigilant in scrutinising the allegations in a claim with care before drawing the inference of risk of dissipation;
(f) Dishonest or wrongful acts which are themselves not acts of dissipation may nevertheless be relevant to the issue of dissipation; and
(g) Evidence of dishonest and fraudulent conduct or other serious wrongdoing which form the basis of the claims, and which reflect adversely on the integrity of the defendant, may point powerfully towards an inference of such risk.
31. Further, the burden is on the plaintiff to prove the risk of dissipation. The defendant does not bear any burden to disprove it.
32. In the supporting affirmation of Wong Kenneth Wei-Jun filed on 13 June 2025, the plaintiff said there is evidence that there were transfers of money between the 1st defendant’s Bank of China account and the 2nd defendant’s account; the 1st defendant made multiple withdrawals from her Bank of China savings account to her other accounts and her accounts had no or de minimis balances. As such, the plaintiff said that there is a real risk of dissipation or removal of assets, inter alia, by the 2nd defendant out of jurisdiction.
33. Mr Stephen Ku, counsel for the plaintiff, submitted that due to the occurrence of fraud, the risk of dissipation of assets speaks for itself, quoting para 21 of Crete Maritime Corp v Emirates Shipping Line DMCEST [2017] 5 HKLRD 345 in aid, which reads:
“21. I agree with Mr Chain that in the context of unacceptably low commercial morality the court deals with a spectrum of conduct. At one end, there are clear cases of fraud. A good example is internet fraud, which is quite prevalent in recent years. In those cases, the real risk of dissipation may be said to be self-evident. This sits with common sense because the fraudulent exercise is designed to deprive the plaintiff of his assets.”
34. Given that the fraud was meticulously performed by the 1st defendant when she was in the employment of the plaintiff and part of the moneys was paid into the 2nd defendant’s account, I am convinced that there is a real risk of dissipation of assets by the 2nd defendant. In coming to this conclusion, I am aware of the 2nd defendant’s case that he had no knowledge of the MOX account, which remains an issue to be resolved at the trial.
Balance of convenience
35. The plaintiff is willing to give an undertaking as to damages to the 2nd defendant and I see no basis that the plaintiff is financially incapable of honouring the same.
36. By the nature of the plaintiff’s claim, preservation of fund is a significant consideration. I would hold in favour of continuing the injunction order until trial or further order.
Conclusion and Order
37. By reasons of the aforesaid, I would allow paragraphs 1 and 2 of the summons.
Costs
38. As per paragraph 3 of the summons, I make a costs order nisi that the costs of the summons be cost in the cause with certificate for counsel.
39. In the absence of any application for variation within 14 days
from the date of this Decision, the costs order nisi shall become absolute.
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( B. Mak )
Deputy District Judge
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Mr Stephen Ku, instructed by Hui Doe & Sum Law Firm LLP, for the Plaintiff
The 2nd Defendant appeared in person
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