TAIHEI DENGYO KAISHA, LTD v. BOK JOENG HONG KONG CO LTD AND OTHERS

HCA 88/2022

[2022] HKCFI 2377

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 88 OF 2022

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DECISION

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1.  The plaintiff’s case according to its Statement of Claim is that it is the victim of an email and impersonation fraud, and was between 5 and 10 January 2022 defrauded into paying 3 sums of HK$15,586,247.14, HK$15,926,770.18 and HK$18,260,770 (the “3 Sums”, in the total amount of HK$49,773,787.32, the “Total Sum”)  into an account under the name of D1. Subsequent inquiry shows that some of those funds were dissipated to 13 accounts under the name of D2 to D14. P issued the Writ herein on 21 January 2022. The Statement of Claim was filed on 2 March 2022. The pleaded causes of action include fraud, unjust enrichment, dishonest assistance and conspiracy to injure. Both proprietary and monetary relief are sought.

2.  On 12 May 2022, P obtained in default of acknowledgment of service monetary judgments against a number of defendants (not including D1).  The judgment against D7 is confined to the amount of US$45,000 that was transferred to D7’s account.

3.  By summons of 23 June 2022, and in so far as still relevant, P seeks inter alia:

(a)  default judgment against D1 for the Total Sum, and a declaration that D1 held the 3 Sums as constructive trustee for P; and

(b)  an order setting aside the default judgment against D7, and a new default judgment against D7 covering not just the sum D7 has received, but the Total Sum, on the basis of dishonest assistance and conspiracy to injure.

4.  Mr Dexter Yuen, a solicitor with Messrs Oldham, Li & Nie has filed his 4^th affirmation in support of the application.  He explains that after the default judgment, analysis of information obtained from disclosure by banks support a more extensive judgment against D7.  He seeks to place the analysis before this Court.  Those materials and analysis however have not been pleaded.

5.  I am satisfied that service of the process and all necessary documents have been validly effected upon D1 and D7.

6.  On the law, I am satisfied that this is an appropriate case to make declaratory judgments without a full trial.  That is necessary in order to do fullest justice to D1, a victim of an elaborate fraud.

7.  I grant the default judgment against D1.

8.  The position of D7 is different:

(a)  This being an application under O.13 r6(1)  and O.19 r7(1), and as explained at §19/7/11 of Hong Kong Civil Procedure 2022, this Court cannot receive any evidence, but must give judgment according to the pleadings alone;

(b)  According to the Statement of Claim, D7 has only received US$45,000;

(c)  The pleaded facts against D7 in respect of the causes of action of dishonest assistance and conspiracy are scanty.  The matters and analysis put forward by Mr Yuen are not pleaded;

(d)  On the face of pleadings, there is insufficient basis for this court to grant judgment against D7 for the Total Sum.

9.  Having considered the cases cited to and the Statement of Claim before me, I am prepare to set aside the default judgment entered against D7, and enter a new default judgment against D7 for, but only for:

(a)  US$45,000 on the basis of money had and received, with a Declaration of constructive trust;

(b)  damages to be assessed on the basis of dishonest assistance (with tracing)  and conspiracy to injure, but not for the Total Sum at this stage.

10.  For both D1 and D7, I will vary the injunctions respectively against them so that the terms of the judgments can be complied with.  I also make an Order for that purpose under s.25A of the High Court Ordinance.

11.  Hence, in terms of the draft order placed before me, I grant:

(a)  against D1 §§2 and 6;

(b)  against D7 §§1, 3, 4(2), 4(3), 5(2)  and 7;

(c)  against both:

(i)   costs in terms of §8, and

(ii)  liberty to apply.