LANTON NICOLE ELIZABETH v. SHU WENQIN

DCCJ 2635/2022

[2025] HKDC 2029

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2635 OF 2022

-------------------------------

BETWEEN

-------------------------------

-------------------------------

JUDGMENT

-------------------------------

1.  In this case, the Plaintiff seeks to recover a sum of money from the Defendant as a victim of an online romance fraud.

A. THE PLAINTIFF’S CLAIM

2.  The Plaintiff is a Hong Kong permanent residing in Canada.

3.  The Defendant was and is the account holder of bank account number 570-86771-541 maintained with Standard Chartered Bank (Hong Kong) Limited (“Defendant’s SCB Account”).

4.  In about end of August 2020, the Plaintiff joined an online dating app called “MOMO陌陌” (“Dating App”). Through the Dating App, the Plaintiff got acquainted with a male with the user name of Zhan Shuo (“Zhan”). They soon developed a romantic relationship.

5.  On 2 November 2020, Zhan called the Plaintiff and told her that his employer had launched a new project in virtual currency investments. Zhan persuaded the Plaintiff that she could make money out of investing in virtual currencies.

6.  The Plaintiff later registered an account with her own email address. Zhan informed the Plaintiff that in order to make investments, she had to contact the customer service via a WeChat account namely “bitcoinget” (“Customer Service”). The Customer Service would then inform the Plaintiff the relevant bank accounts to which she had to transfer money. After the transaction, the sum transferred would be displayed in the Plaintiff’s investment account.

7.  From 2 November 2020 to 24 June 2021, the Plaintiff made various transfers to different bank accounts provided by the Customer Service on various dates. Relevant to these proceedings are the two transfers directly or indirectly received by the Defendant as follows:-

	Date	Account Numbers	Account Holder	Amount
1.	09/06/2021	570-86771-541	The Defendant	HK$500,000
2.	09/06/2021	570-86771-541	The Defendant	HK$77,452

8.  The first sum of HK$500,000 was made indirectly by the Plaintiff to the Defendant in the following manner:-

(a) On 2 June 2021, the Plaintiff transferred US$200,000 to the bank account of a person known as Ms Tam Mei Fun Sime (“Ms Tam”) with account number 117-690096-833 maintained with the Hong Kong Shanghai Banking Corporation (“Tam’s HSBC Account”);

(b) As a result, Ms Tam received US$199,980 from the Plaintiff after deducting the bank handling charges;

(c) On 7 June 2021, Ms Tam exchanged US$199,980 into HK$1,545,970 at the exchange rate of US$1 to HK$7.73; and

(d) On 9 June 2021, the Plaintiff instructed Ms Tam to transfer HK$500,000 from Tam’s HSBC Account to the Defendant’s SCB Account. In doing so, it is the Plaintiff’s case that Ms Tam acted as the Plaintiff’s agent.

9.  The second sum of HK$77,452 was transferred from the Plaintiff to the Defendant’s SCB Account directly.

10.  It is the Plaintiff’s pleaded case that Ms Tam was a close friend of her for many years. The aforesaid arrangement was to save bank charges of multiple overseas transactions and was made based on the trusted friendship between Ms Tam and the Plaintiff.

11.  Later, the Plaintiff requested Zhan and the Customer Service to return her invested money but in vain. She then realised that she had fallen victim to an online fraud. She reported the matter to the Hong Kong police on 7 July 2021.

12.  The Plaintiff claims for the return of the two sums from the Defendant (totaling HK$577,452) (“Sum”) on the basis of unjust enrichment. The Plaintiff also has a claim in knowing receipt claiming that the Defendant is liable to account to the Plaintiff in respect of the Sum as constructive trustee.

13.  The Plaintiff seeks, inter alia, (1) the return of the Sum, (2) a declaration that the Defendant holds the Sum on constructive trustee for the Plaintiff with an order that the Sum be forthwith returned to the Plaintiff and (3) an order for account and inquiries into the Sum and/or the traceable proceeds thereof.

B. THE DEFENDANT’S DEFENCE

14.  The Defendant claims that she had no knowledge of the fraud practised upon the Plaintiff. She is an innocent party who received the Sum as a conduit for her ex-boyfriend’s (identified as Mr Yu S T (“Mr Yu”)) affairs.

15.  In respect of the first sum transferred to the Defendant’s SCB Account via Ms Tam, the Defendant denies that the Plaintiff has any proprietary interest in the money transferred from Ms Tam’s account to the Defendant’s SCB Account.

16.  In respect of the second sum transferred to the Defendant’s SCB Account in the sum of HK$77,452, the Defendant has admitted that the said sum appears to have been transferred from the Plaintiff to her.

17.  Further, the Defendant avers that:-

(a) On 9 June 2021, the Defendant was requested by friends in Mainland China to offer assistance in HKD/RMB exchange on a friendly basis. In the Defendant’s Answer to Further and Better Particulars of the Defence, the Defendant identified the two friends as Mr Yu S T and Ms Lu Q W and that they reached this arrangement orally;

(b) The Defendant procured to pay out a sum of RMB473,500 in Mainland China in exchange for HK$577,452 at the exchange rate of about 0.8199; and

(c) As such, good consideration in the sum of RMB473,500 had been provided for the receipt of the Sum.

18.  The Defendant contends that (1) she is an innocent recipient of the Sum; (2) the receipt of the Sum was not unjust as it was just part of dealings between the Defendant and her friends; (3) the enrichment (at least partially) was not at the expense of the Plaintiff as the sum of HK$500,000 came from Ms Tam.

19.  The Defendant relies upon the change of position defence in that the money was innocently spent or applied after receipt without fault or unjust factor by the Defendant. However, no further particulars have been pleaded in the Amended Defence in support of the change of position.

20.  The defence of bona fide purchaser for value without notice was initially raised by the Defendant but later abandoned at the closing stage of these proceedings.

21.  Further, in the Defendant’s Opening Submissions, the Defendant submits that as a conduit of third parties who received the Sum and transferred the same out of her account within a short period of time, it is inequitable to order that the Defendant make restitution to the Plaintiff – as the Sum had already been paid out to Mr Yu. During the Defendant’s closing address, it was clarified that the conduit argument was just part of the Defendant’s change of position defence.

22.  In evidence, the Defendant relies upon the bank statements of the Defendant’s SBC Account and Mr Yu’s HSBC Bank Account (with account number 636-851***) showing that (1) a sum of HK$650,000 was transferred out of Defendant’s SCB Account on 15 June 2025 and (2) a sum of HK$650,000 was deposited into Mr Yu’s bank account on the same day. The said bank statement from Mr Yu, however, has been heavily redacted. The full name of Mr Yu and the full account number of this account remains unknown because of the redactions.

C. THE EVIDENCE

C1. The Plaintiff’s Evidence

23.  The Plaintiff is now aged 56. She studied up to secondary school level in Hong Kong. She had not been employed after her children were born about 20 years ago. She assisted her former husband in his business after they had migrated to Canada.

24.  The Plaintiff claims that she can read both Chinese and English. She joined the Dating App in around the end of August 2020 and got in touch with Zhan in around August 2020. At the time, she was going through her divorce. In her oral evidence, the Plaintiff further clarified that Zhan was in fact surnamed Lam. Zhan was just the name he used in their WeChat communications.

25.  From 3 September 2020, Zhan and the Plaintiff switched their conversations to WeChat. Their relationship turned into a romantic one. Their daily conversations on WeChat are also produced as evidence in these proceedings.

26.  Zhan told the Plaintiff that he was a single man who had to travel for work frequently. Zhan told the Plaintiff that he worked in the IT department of a company at the management level.

27.  On 2 November 2020, Zhan called the Plaintiff and told her that his employer had launched a new project in virtual currency investments. At first, Zhan told the Plaintiff that he would like to invest in his employer’s virtual currency website but he had a conflict of interest in doing so. Zhan then asked whether the Plaintiff could lend him her name to open an investment account to which the Plaintiff agreed.

28.  Zhan then guided the Plaintiff to register an account in the website so that he could make investment transactions. Zhan then said to the Plaintiff that in order to make investments on the said website, the Plaintiff had to contact the Customer Service. The Customer Service provided to the Plaintiff the details of the designated bank accounts in order to transfer money to the virtual wallet.

29.  After multiple transactions executed on behalf of Zhan, Zhan convinced the Plaintiff that she could also make money through investing in virtual currency investments. As the Plaintiff saw Zhan making profits through his investments, the Plaintiff believed that Zhan had some insider information and she began depositing money into her virtual currency account by transferring money to the designated accounts provided by the Customer Service.

30.  The Plaintiff began transferring money to designated accounts given by the Customer Service in about November 2020.

31.  Starting from December 2020, the Plaintiff tried to retrieve her money from her virtual currency wallet and could not do so. The Customer Service and Zhan required her to transfer more money to pay for some taxes before she could retrieve her money.

32.  On 6 February 2021, the Plaintiff received a message from the Customer Service notifying her that the Customer Service would no longer be available and that she had to proceed with her investments with Zhan. From then on, the information related to the designated accounts for depositing money was shared by Zhan with the Plaintiff.

33.  On 8 June 2021, the Plaintiff followed Zhan’s instruction and transferred the Sum to the designated account given, which turns out to be the Defendant’s SCB Account. HK$77,452 was transferred from the Plaintiff directly. The other sum of HK$500,000 was transferred by the Plaintiff first to Ms Tam and then from Ms Tam to the Defendant’s SCB Account.

34.  In the WeChat communications between the Plaintiff and Zhan, it appears that the Sum was transferred to the Defendant’s SCB Account in order for the Plaintiff to retrieve her money from the virtual currency wallet.

35.  The investment website was shut down shortly after June 2021. The Plaintiff realised that she had fallen victim to a fraud. She reported the matter to the Hong Kong police on 7 July 2021.

36.  It is common ground that the Plaintiff and the Defendant did not previously know each other. In respect of the transfers of the Sum to the Defendant’s SCB Account, the Plaintiff stated that her original intention was to transfer the Sum to the said account so that she could invest on the virtual currency website. She had no intention of transferring the Sum to the Defendant.

37.  In respect of the role of Ms Tam, the Plaintiff has given further evidence in her supplemental witness statement. The gist of her evidence is as follows:-

(a) The Plaintiff and Ms Tam met each other in their twenties when they had been working in the same company in Hong Kong. They then became close friends with each other;

(b) The Plaintiff has been residing in Canada and did not have a residence in Hong Kong. She entrusted Ms Tam to handle her money and personal matters while she was not in Hong Kong;

(c) When she started to transfer money to the designated accounts provided by Zhan, she did so from her bank account maintained at the Royal Bank of Canada (“RBC”). Upon a few transactions, both RBC and HSBC stopped her from transferring large sums of money to strangers’ accounts and required her to provide proofs of relationship with the account holders;

(d) Around April 2021, the Plaintiff contacted Ms Tam and told her that she needed to make large transactions in Hong Kong to some designated accounts for investment purposes. The Plaintiff asked Ms Tam if she could transfer money to her bank account first for her to execute any future transactions on her behalf. Ms Tam agreed to this arrangement;

(e) On 2 June 2021, the Plaintiff transferred US$200,000 from her HSBC Bank account to Tam’s HSBC Account. After deducting the bank charge, US$199,980 was received by Ms Tam; and

(f) On 7 June 2021, Ms Tam exchanged the US$199,980 into HK$1,545,970. Soon thereafter, the Plaintiff gave instruction to Ms Tam to transfer the sum of HK$500,000 from Tam’s HSBC Account to the Defendant’s SCB Account.

C2. The Defendant’s Evidence

38.  The Defendant’s witness statement is brief and can be summarised as follows:-

(a) She did not know the Plaintiff and had no knowledge in respect of the alleged fraud practised on the Plaintiff;

(b) She confirmed that she received a sum of HK$77,452 on 9 June 2021 without knowing that the said sum came from the Plaintiff;

(c) On about 9 June 2021, the Defendant’s then boyfriend Mr Yu asked the Defendant to help him exchange RMB, to which the Defendant agreed;

(d) After exchanging messages, Mr Yu arranged his colleague in Mainland China to pay RMB473,500 to another recipient in Mainland China known as Ms Kam (甘小姐) (“Ms Kam”). The Defendant on the other hand received HK$577,452 at the agreed exchange rate of 0.8199;

(e) Soon after 9 June 2021, upon the instruction of Mr Yu, the Defendant transferred all the money received back to Mr Yu; and

(f) The Defendant stated that this is a one-time transaction and she did not pay attention to who was the paying party of the money. The Defendant said that she did not receive any benefit in the transaction. She was just helping Mr Yu.

39.  Under cross-examination, the Defendant said that she moved to Hong Kong from Mainland China in about 2005. At that time, she was living with her ex-husband. They were divorced in about 2014. She worked in a Mahjong parlour before 2017, earning between HK$10,000 and HK$20,000 each month, which was paid to her in cash. She cannot now recall when the Defendant’s SCB Account was opened. She activated the online banking service to the Defendant’s SCB Account and had access to information regarding this account via her mobile phone.

40.  She met Mr Yu in or about March 2018 through the introduction of her friends. According to her understanding, (1) Mr Yu was from Guangzhou but had migrated to Canada earlier; (2) Mr Yu was a successful businessman and worked in the real estate sector; (3) Mr Yu was wealthy and had rental income of around a few millions HKD each month.

41.  After they started dating, Mr Yu would come to Hong Kong to meet with the Defendant. He would stay in Hong Kong for a few months every year. The said arrangement continued despite the lock-down measures globally during the Covid-19 pandemic. They broke up in about January 2024. During their courtship, Mr Yu gave money to the Defendant each month in the region of about HK$30,000 per month. This amount was transferred to the Defendant’s SCB Account. In addition, Mr Yu also gave her money in cash from time to time.

42.  As to why the Defendant transferred HK$650,000 to Mr Yu on 15 June 2021 which was more than the HK$577,452 received, she explained that she did so upon the instruction of Mr Yu. Mr Yu asked her to lend him the additional sum of money. As of now, the additional HK$72,548 has not been repaid to her by Mr Yu.

43.  As to why the bank statements of Mr Yu adduced are heavily redacted, the Defendant was unable to explain the redactions. All she was said that after obtaining a copy of the said statement from Mr Yu, she gave the same to her solicitors. It remains unclear as to who redacted this document and why.

D. DISCUSSION AND ANALYSIS

D1. Analysis of the Plaintiff’s Evidence

44.  The Plaintiff’s case and evidence is supported by the following documentary evidence:-

(a) A telegraphic (wire) transfer instruction from HSBC showing that the Plaintiff transferred a sum of US$200,000 to Tam’s HSBC Account on 2 June 2021;

(b) Screen-captures of Tam’s HSBC Account showing that a sum of US$199,980 was deposited into the said account (USD saving) (ie US$200,000 minus the bank charge) on 3 June 2021. On 9 June 2021, a sum of HK$500,000 was transferred from Tam’s HSBC Account (HKD Saving) to the Defendant’s SCB Account;

(c) The HSBC interbank funds transfer application form dated 9 June 2021 showing that a sum of HK$500,000 was transferred from Tam’s HSBC Account to the Defendant’s SCB account;

(d) The various WeChat conversation record between the Plaintiff and Zhan, in particular a message on 8 June 2021 where the account details of the Defendant’s SCB Account were given to the Plaintiff;

(e) The communication record between the Plaintiff and Ms Tam where the Plaintiff gave the account details of the Defendant’s SCB Account to Ms Tam;

(f) The communications between the Plaintiff and the Customer Service; and

(g) The screen-capture of the virtual currency investment known as “bitcoinget” showing the Plaintiff’s account balances at different times.

45.  The cross-examination of the Plaintiff focused mainly on whether the Plaintiff has adduced sufficient evidence to show that her investment in virtual currency was nothing but a failed investment, rather than a fraud as suggested. The Defendant’s Counsel submits that the evidence disclosed only shows a poor investment decision as opposed to a definitive scam.

46.  I disagree and do not accept this submission. The fact that when the Plaintiff attempted to withdraw money from her virtual currency wallet and could not do so without injecting any further money into it is indicative that the alleged investment had not existed at all, rendering the prior representation by Zhan to the Plaintiff fraudulently made.

47.  That is further borne out by the fact that the investment website was shut down shortly after June 2021. I note that these two aspects of the Plaintiff’s evidence have not been challenged. In any event, the Defendant has given evidence that she never consented to the Defendant’s SCB Account to be used to receive money for any virtual currency investments. That the Sum ended up in the Defendant’s SCB Account in these circumstances is also indicative that the arrangement was a fraud.

48.  The Defendant also suggests that it was not a fraud because according to the Plaintiff, she did purchase the cryptocurrency known as NAC. I disagree. The Plaintiff’s evidence, understood in its proper context, simply means that she at that time genuinely believed that she was purchasing the cryptocurrency.

49.  Also, the absence of arrests or convictions is neither here or there. It does not mean that it was a fraud or not one way or the other.

50.  The Defendant’s Counsel further submits the Plaintiff was evasive when questioned why she did not choose to call Ms Tam to give evidence. When questioned about this, the Plaintiff explained that she did not consider it necessary to call Ms Tam because her transfer of money to Ms Tam and Ms Tam’s transfer of money to the Defendant were all shown on the relevant bank documents. I accept the Plaintiff’s explanation. I cannot see that the evidence of Ms Tam can add much to the Plaintiff’s case or allow the fund-flow of the Sum to be discredited given the documentary evidence.

51.  The Defendant has reminded this Court that the allegation of fraud should be proved on the Re H standard: Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. Having considered all the evidence in the round, I find that the Plaintiff is an honest and credible witness, who was an unfortunate victim of the fraud practised upon her, in the manner described in Section C.1 herein above.

52.  I also find that based on the relevant bank documents adduced, the Plaintiff transferred HK$77,452 directly and another sum of HK$500,000 indirectly via Tam’s HSBC Account to the Defendant.

D2. Analysis of the Defendant’s Evidence

53.  The Defendant’s evidence is unbelievable. I reject her evidence for the following reasons:-

(a) The Defendant’s witness statement is surprisingly brief. The result is that a lot of her evidence under cross-examination featured for the first time under cross-examination. For instance, the main dispute in these proceedings concern what happened when the Sum was received by the Defendant on 9 June 2021. It is the Defendant’s evidence that Mr Yu asked her to help him to exchange RMB into HKD to which she agreed. But the Defendant’s witness statement was silent as to how Mr Yu communicated this request for assistance to her.

(b) When asked about this under cross-examination, the Defendant initially answered that Mr Yu was in Canada on 9 June 2021 and he gave her an audio call via the WeChat App to convey the above request in the morning (Hong Kong Time) of 9 June 2021. However, under further questioning, she changed her evidence and told this Court that in fact on 9 June 2021, Mr Yu was in Hong Kong. After a few moments later, the Defendant again changed her evidence to say that Mr Yu was in Macau on 9 June 2021 because he had to attend meetings in Macau with his business partners. Thus, on this important part of the Defendant’s case, the Defendant offered this Court three different versions of event, without plausible explanations.

(c) In the Defendant’s witness statement, she gave evidence that Mr Yu and her exchanged several messages regarding the aforesaid exchange of RMB into HKD. Those messages are apparently relevant and important for the Defendant’s case. But they are not adduced as evidence. No explanation has been given to explain the absence of such evidence.

(d) Also, as noted above, it is the Defendant’s case that she procured to pay out a sum of RMB473,500 in Mainland China in exchange for HK$577,452 at the exchange rate of about 0.8199. The said alleged procurement was relied upon by the Defendant in support of her case that good consideration had been provided for the receipt of the Sum. However, under cross-examination, the Defendant inexplicably denied that she had any involvement in the paying out of the RMB473,500. She even denied that she had any knowledge of the same on 9 June 2021. She changed her evidence to say that the said exchange was handled by Mr Yu and by him alone.

(e) The Defendant further confused the matter by stating under cross-examination that on 9 June 2021 when she received the Sum, she initially thought that the said Sum was transferred to her for her benefit by Mr Yu and that she could possibly be allowed to spend it on herself. Such evidence is again at odds with the Defendant’s pleaded case.

(f) Despite the Defendant’s later abandonment of the defence of bona fide purchaser for value without notice, this Court can still take into account the Defendant’s change of evidence in assessing her credibility.

(g) Despite the Defendant’s claim that Mr Yu gave her HK$30,000 each month, in the bank statement produced by her for June 2021 in respect of the Defendant’s SCB Account, the said alleged deposit of money cannot be seen on the statement.

(h) In respect of the withdrawal of HK$650,000 from the Defendant’s SCB Account on 15 June 2024, the relevant bank statement shows that the said withdrawal was made by way of a cashier’s order. This was confirmed by the Defendant in her oral evidence. However, the bank statement of Mr Yu’s account shows that the deposit of HK$650,000 into the same account was by way of a cheque deposit. This casts into doubt whether the deposit into Mr Yu’s account was the same sum withdrawn from the Defendant’s SCB Account.

(i) In respect of this episode of purchasing a cashier’s order, the Defendant also gave different versions to this Court. Initially, the Defendant told this Court that after she had purchased the cashier’s order, she gave the cashier’s order to Mr Yu. Later, she changed her evidence to say that she actually went to the bank with Mr Yu to purchase the cashier’s order together. The Defendant’s evidence in this respect is again confusing and contradictory.

54.  The Plaintiff has invited this Court to draw adverse inferences against the Defendant’s failure to adduce evidence from Mr Yu and the Defendant’s failure to adduce an un-redacted version of Mr Yu’s bank statements. I do not consider it necessary to do so given my analysis of the Defendant’s evidence above. Suffice it to say that the Defendant’s evidence is uncorroborated by other independent evidence.

55.  Based on the aforesaid, I find that the Defendant has not been truthful in her evidence. I reject her evidence.

D3. The Plaintiff’s Claim of Unjust Enrichment

56.  The Plaintiff has pleaded a case of unjust enrichment. It is well-established that the following elements have to be established by the Defendant: (1) Were the Defendants enriched? (2) Was the enrichment at the Plaintiff’s expense? (3) Was the enrichment unjust? (4) Are any of the defences applicable?: Shanghai Tongji Science & Technology Industrial Co Ltd v Casil Clearing Ltd [2004] 7 HKCFAR 79 at §67.

57.  The Defendant argues that she had not been enriched because the money she received had been spent in RMB in exchange for the Sum. That is wrong. The first requirement is satisfied by the receipt of the Sum by the Defendant. The fund-flow documents show that the Defendant received the Sum which can be traced to have come from the Plaintiff. In any event, even on the Defendant’s own evidence, she did not pay for the RMB in respect of the alleged money exchange.

58.  The Defendant then argues that the enrichment was not at the Plaintiff’s expense (at least partially) because HK$500,000 of the Sum did not come from the Plaintiff’s bank account but from Tam’s HSBC Account.

59.  I have recently considered the concept of “at the expense of the plaintiff” in Chan Ting Ting v Guo George & Ors [2025] HKDC 1928 adopting the useful observations by Hon Cheng J in JSP International SRO v Alacrity Limited and Ors [2022] HKCFI 977 in which her Ladyship held at §20 (and I quote):-

“there may be situations in which, whilst the parties have not dealt directly with one another, or with one another's property, the defendant has nevertheless received a benefit from the claimant, and the claimant has incurred a loss through the provision of that benefit. These are generally situations in which the difference from the direct provision of a benefit by the claimant to the defendant is more apparent than real.”

60.  Further, in AXHT Co Ltd v Freeway Finance Co Ltd [2020] 4 HKLRD 133, DHCJ Eva Sit SC held as follows in §§40-41 (and I quote):-

“40. The question is what is the legal test to be applied for the purpose of determining whether the plaintiff has suffered a loss that is sufficiently closely linked with the defendant’s gain for the law to hold that a benefit has been transferred from the plaintiff to the defendant.

41. It is clear from the authorities that direct transfer from the plaintiff to the defendant is not necessary for this purpose, though it would no doubt satisfy the requirement. In Shanghai Tongji, the Court of Final Appeal rejected an argument advanced by the defendant (Casil), who received the proceeds of a sight letter of credit the plaintiff (Shanghai Tongji) caused its bank to issue, through negotiation of the draft with Casil’s own bank, that the enrichment of Casil was not at the expense of Shanghai Tongji. It held that Casil’s enrichment was undoubtedly at the expense of Shanghai Tongji, for (i) the letter of credit was merely the mechanism whereby Casil received payment against tender of conforming documents at the direction and for the debit of Shanghai Tongji ([71]); and (ii) the interposed issuing and negotiating banks merely provided the mechanism for making payment to Casil under the letter of credit; they were not intermediate recipients unjustly enriched but more than "a mere conduit-pipe" for payment to the ultimate recipient ([73]).

61.  I respectfully agree. That the Plaintiff’s payment of HK$500,000 through Ms Tam to the Defendant does not mean that the said enrichment was not made at the expense of the Plaintiff. Having analyzing the bank statements adduced in these proceedings, the Plaintiff has clearly suffered a loss that is sufficiently closely linked with the Defendant's gain. I find that this requirement is also satisfied.

62.  It should be pointed out that the Plaintiff has raised the issue of equitable subrogation. At the closing stage, that point, however, was abandoned by the Plaintiff and I say no more on this.

63.  As to whether the enrichment was unjust. The Defendant argues that there was no unjust factor because the Plaintiff was participating in an investment scheme in virtual currencies, which carries high risks and that the Defendant was not a party to that scheme. I reject this submission. The Plaintiff’s case is based on fraud and mistake. The so-called investment in virtual currency was just a façade of the fraud misleading the Plaintiff to part with her own money. In these circumstances, the Plaintiff’s transfer of her money into the designated accounts given by Zhan, including into the Defendant’s SCB Account, was made by mistake.

64.  The Defendant further argues that the Plaintiff deliberately sidestepped the warnings given to her by her banks (given by Royal Bank of Canada and HSBC) and thus acted unreasonably in failing to ascertain the true purpose of the payments. The Plaintiff had waived inquiries and cannot now assert to have been labouring under a mistake, which is self-induced.

65.  This question was examined in Globenet Droid Ltd v Hong Kong Hang Lung Electronic Co [2016] 3 HKLRD 863 where it was held that (1) to determine whether doubts in a mistake are sufficient to defeat the mistake, the question is whether the plaintiff still thinks that it is more likely than not that he has to pay. (2) Further, despite a mistake in the sense of (1) above, if the plaintiff assumed or must be taken to have assumed the risk that he actually does not have to pay, the enrichment is not unjust. (3) (a) Whether the plaintiff labours under such a mistake, (b) whether such a mistake did cause him to pay and (c) whether he has assumed the risk, may well depend on whether he has reasonably responded to his doubts (§43).

66.  However, a claimant will not be denied recovery for mistake merely because he is negligent where he was unaware of the risk that his belief or assumption might be incorrect: Cheung Yiu Leung v Cheung Chong Money Exchange o/b Cheung Chong Ltd [2024] HKDC 1596 at §48.

67.  I reject this argument. Whether the Plaintiff had doubts about the truth of what she was induced to believe is a subjective matter. Thus, the need for a subjective doubt, as opposed to merely being objectively negligent, is necessary to negative a mistake. Under cross-examination, the Defendant frankly accepted that out of her stupidity, she decided to continue to transfer money out of her bank account despite warnings from the banks. Her decision to continue to do so might be objectively described as less than prudent, but it does not show that she was not acting under an operative mistake, bearing in mind the situation she was then in.

68.  The Plaintiff thought that she was investing into virtual currencies but the whole scheme was a fraud. The Plaintiff did not know the Defendant or have any bona fide business dealings with her. The Plaintiff did not intend to make any payment or gift to the Defendant. The transfer of the money was made because of the fraud practised upon the Plaintiff and because of the mistake of fact. I find that the Defendant’s enrichment was unjust in these circumstances.

D4. The Change of Position Defence raised by the Defendant

69.  To establish the defence of change of position, the following are required to be established: (1) there is a link between the receipt of the benefit and the change of position so that, but for the receipt of the benefit, the defendant’s position would not have changed; (2) the defendant changed its position in good faith and (3) the defendant changed its position in circumstances which make it inequitable for the defendant to be required to make restitution: Idemitsu Chemicals (Hong Kong) Co Limited v Yanqing Limited [2024] HKCFI 1075 at §33.

70.  As I have already observed above, the withdrawal of the sum of HK$650,000 from the Defendant’s SCB Account was made by way of a cashier’s order. The deposit of the sum of HK$650,000 into Mr Yu’s bank account was, however, by way of a cheque deposit. That casts into doubt whether they are of the same sum. The Defendant has adduced no further evidence to explain the discrepancy.

71.  I have explained above why I reject the Defendant’s evidence. Having done so, there is in any event no evidence to make good this defence.

72.  The defence of ministerial receipt has been mentioned in the Defendant’s Closing Submissions but that necessarily falls and rises with the change of position defence as they both depend on the transfer from the Defendant to Mr Yu. I reject that defence as well.

73.  In conclusion, I find that the Plaintiff has successfully established its claim in unjust enrichment against the Defendant. The Defendant is liable to make restitution and to return the Sum to the Plaintiff.

D5. The Plaintiff’s Claim for Proprietary Relief

74.  In the Amended Statement of Claim §§11D-11E, the Plaintiff has pleaded that the Defendant is and was in knowing receipt of the Sum and is therefore liable to account to the Plaintiff as constructive trustee. In the prayers, the Plaintiff asks for, inter alia, the following reliefs:-

(a) A declaration that the Defendant holds the Sum on constructive trust for the Plaintiff with an order that the Sum be forthwith returned to the Plaintiff.

(b) An order for accounts and injuries into the Sum for the Plaintiff to recover the Sum and/or the traceable proceeds thereof.

75.  In respect of the imposition of a constructive trust on the Sum, I agree with the Defendant that the Plaintiff must show that the Defendant has retained property in which the Plaintiff can identify her proprietary interest, such as to justify the grant of a declaration of constructive trust over such property in the hands of the Defendant. The burden is on the Plaintiff to prove that the property to which he lays claim is still in the ownership of the defendant: Welly Grace Ltd and Ors v Keung Yee Man and Ors [2023] HKCFI 3082 §29.

76.  The bank statement produced by the Defendant shows that a sum of HK$650,000 was transferred out of the Defendant’s SCB Account on 15 June 2021, leaving HK$45,391.2 as balance in that account after the withdrawal. The Defendant said that the withdrawal was by way of a cashier’s order. The Plaintiff submits that there being no other evidence as to the disposal of the cashier’s order, the Defendant must be held to have retained the property of the Sum in the form of that cashier’s order which could be the subject of a constructive trust.

77.  Imaginative though that argument may be, a cashier’s order is a chose in action giving the recipient the right to enforce payment against the issuing bank. That right usually has an expiry date. The absence of evidence that the said cashier’s order was disposed of does not mean that the Defendant has still retained the same. The burden is still on the Plaintiff to prove that the Sum is still in the ownership of the Defendant. There remains no evidence showing that in these proceedings.

78.  Thus, the Plaintiff’s claim that there should be a declaration of constructive trust over the Sum is rejected.

79.  Apart from proprietary remedies, the Plaintiff also asserts that the Defendant is personally liable to account for the Sum to the Plaintiff. Given that the Defendant received the Sum from the Plaintiff, the question is whether the Defendant should be made a constructive trustee to personally account for the Sum.

80.  It should be noted that the Defendant being the recipient of the Sum is not a true trustee. Her exposure to equitable remedies arises out of knowing receipt of proceeds of fraud under the principle in Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669. If so found, she is required by equity to account as if she was a trustee or a fiduciary.

81.  This can happen even if the recipient was not a party to the fraud, if the state of knowledge is such as to make it unconscionable for her to retain the property, the defrauded claimant has a tracing remedy. Further, knowledge does not have to be acquired at the time of receipt, and it can be acquired subsequently while the property is in the recipient’s hands: Guaranty Bank and Trust Company v ZZZIK Inc Limited, unreported, HCA 1139/2016, 18 July 2016 at §§32-33 and JP Morgan SE Luxembourg Branch v LV Guangxin Trade Co Ltd [2023] HKCFI 1094 at §18.

82.  Under §§11D and 11E of the Amended Statement of Claim, the Plaintiff has pleaded the particulars in respect of the Defendant’s alleged knowledge of the Plaintiff’s mistake. The same have been further elaborated upon by the Plaintiff in §39 of the Plaintiff’s Written Closing Submissions.

83.  Having rejected the Defendant’s evidence, I am satisfied that the Plaintiff has shown on a balance of probabilities that the Defendant has acquired such knowledge rendering her receipt of the Sum unconscionable. In any event, by reason of the police investigation and the service of the Writ of Summons in these proceedings on the Defendant, the Defendant must have then acquired such knowledge subsequent to her receipt.

84.  A related question is whether the Defendant was still retaining the Sum when she acquired such knowledge. Unfortunately, there is a lacuna of evidence as to what happened to the Sum after the Defendant’s receipt and after the cashier’s order was issued. As pointed out above, I am not satisfied that the Sum was paid out to Mr Yu. I am also not satisfied that the evidence is sufficient to show that the said Sum was retained by the Defendant. This is why an order for account is needed to identify the whereabouts of the Sum.

85.  For the foregoing reasons, I find that the Defendant is personally liable to account for the Sum to the Plaintiff.

E. Disposition and Orders

86.  I hereby grant the following orders:-

(a) the Defendant do pay sum of HK$577,452 (“Judgment Sum”) to the Plaintiff;

(b) the Defendant do pay interest on the Judgment Sum to the Plaintiff at judgment rate until the date of payment; and

(c) The Defendant do account to the Plaintiff for all assets and/or monies (and their traceable proceeds) derived from the Sum, and all necessary inquiry be made to enable the Plaintiff to trace and recover such assets and/or monies.

87.  In respect of costs, the parties agreed that costs should follow the event in these proceedings and that certificate for Counsel should be granted. Given that the Plaintiff has succeeded in recovering the Sum from the Defendant, I hereby order that the Defendant do pay the Plaintiff’s costs of these proceedings and of this trial, to be taxed if not agreed, with certificate for Counsel.