HO LOK YI v. HA OLIVER AND ANOTHER

DCMP 479/2024

[2024] HKDC 1882

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 479 OF 2024

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DECISION

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Introduction and Background Facts

1.  I have before me an application by the Plaintiff (“P”) by Summons dated 3 October 2024 (“the Summons”) against the 2^nd Defendant (“the Bank”) for disclosure of the documents set out in the Summons pursuant to s 21 of the Evidence Ordinance, Cap 8 (“EO”) and the court’s inherent jurisdiction.

2.  In this action, P has claimed that she was a victim of an online fraud and was defrauded to transfer a total of HK$600,000 to the account of “Chiu Kam Wing Bevis” (“Mr Chiu”) maintained with the Bank (“the 1^st Tier Account”) on 1 and 2 November 2022.

3.  Later, when she did not receive repayment of her monies and she googled the name “Chiu Kam Wing Bevis” and found out that that person was involved in fraud cases, did P realize that she was a victim of a fraud.  She reported the matter to the Hong Kong Police (“the Police”) on 24 November 2022.

4.  The Police subsequently told P that a sum of HK$200,000 was transferred from the 1^st Tier Account to the 1^st Defendant’s account maintained with the Bank (“D1’s Account”).  D1’s Account has been frozen by the Police.

5.  P has sought and obtained disclosure orders against the Bank previously pursuant to an Order of Deputy District Judge Joseph Vaughan dated 28 March 2024 and an Order of Deputy District Judge N Hui dated 20 August 2024 in respect of D1’s Account and the 1^st Tier Account respectively.  However, the bank statements disclosed pursuant to those Orders did not show the identities of the transferors and transferees in respect the withdrawals and deposits therein.

6.  P now seeks an order for disclosure against the Bank of: (a) the identities of the transferee(s) and/or transferor(s); (b) the bank account number(s)/FPS account number(s) and bank name(s) of each of the transferee(s) and/or transferor(s); (c) the amount(s) and date(s) of the transfer(s) in respect of: (1) each of the withdrawals and deposits between 1 November 2022 and 30 November 2022 in the 1^st Tier Account; and (2) each of the deposits on 1 November 2022 in D1’s Account.

7.  The Bank was served the Summons but has indicated by letter dated 22 October 2024 that it adopts a neutral stance with regard to the Summons save it seeks costs on an indemnity basis and wishes to be excused from attending today’s hearing.  The Bank has not appeared today.

8.  Mr Ha (ie D1) and Mr Chiu were served the Summons by P and they have appeared, unrepresented, today.  Service on the account holders is not a statutory requirement and the court can make an order under s 21 without summoning the bank or any other party: see s 21(2) of EO and Aisan Corporation of America & Anor v Unknown Bank Account Holder(s) with DBS Bank (Hong Kong) Limited [2023] HKCFI 567 at §12. Whilst their attendance today were not strictly speaking necessary, I did give an opportunity for them to make any submissions in respect of the Summons.

Applicable principles

9.  The applicable principles governing an order under s 21 of EO are well-established.  Although it has been said that a s 21 order is justified where the plaintiff seeks to trace funds which in equity belong to him and of which there was strong evidence that he has been fraudulently deprived, there are 3 limits:

(1)  First, the plaintiff must demonstrate a real prospect that the information may lead to the location or preservation of assets to which he is making a proprietary claim;

(2)  Secondly, the documents sought to be disclosed must be identified with some specificity as would be expected of a subpoena; and

(3)  Thirdly, the court needs to balance the potential advantage against the detriment to the person against whom the order is sought, not merely in terms of costs but by way of invasion of privacy and requiring breach of obligations of confidence to others.

See CTO (HK) Ltd v Li Man Chiu & Others [2002] 2 HKLRD 875, §§12-13.

Analysis and Orders

10.  Applying the above legal principles to the facts of the present case, I am satisfied the orders sought should be granted.

11.  In this action, P has claimed against D1 for payment of HK$200,000 on the basis of constructive trust or alternatively, unjust enrichment

12.  There is strong documentary evidence that P has been fraudulently deprived of her monies of which HK$200,000 were transferred to D1’s Account.

13.  I am also satisfied of that the information sought would likely reap substantial and worthwhile benefit to enable P to preserve, locate and/or recover monies to which she has made a proprietary claim against D1.

14.  The discovery sought is specifically defined and not unduly wide.  I have also taken into account the neutral stance adopted by the Bank who have not suggested any difficulty in complying with the orders sought.

15.  Having balanced the competing interests of the victim and the innocent party (the Bank) caught up in the wrongdoing, the previous court orders for disclosure already made, and mindful that the power to order disclosure should be exercised with great caution, I make an order in terms of the Draft Order submitted to me save the order as to costs as amended by me.