International Fraud & Asset Tracing 2022

Last Updated May 03, 2022

Hong Kong

Law and Practice

Authors



Holman Fenwick Willan (HFW) is recognised internationally as an industry leader advising on all aspects of aviation, commodities, construction, energy and resources, insurance and reinsurance, and shipping. The Hong Kong office has a stellar record in representing clients in all forms of disputes, both regionally and internationally. The fraud and insolvency practice provides a full-service onshore capability in Hong Kong. It has a long tradition of success acting for the victims of fraud, banks, local and international businesses and directors. The practice has particular expertise in dealing with trust matters and shareholder disputes in offshore financial jurisdictions. The type of fraud work undertaken includes multi-jurisdictional fraud claims; locating, securing and recovering the proceeds of fraud; obtaining Norwich Pharmacal orders and injunction orders of all kinds, including Mareva, proprietary, mandatory and anti-suit injunctions, stop orders and committal orders; and negotiating settlements with fraudsters – which is an art!

It has been said that the many forms of fraud are as diverse as man's infinite capacity to invent them (Grossman, 1993). Perhaps that is why in Hong Kong there is no overarching definition of "fraud".

The High Court of Hong Kong recently described fraud as "a concept rather than a specific cause of action", adding, "that is why one finds the word used in many and diverse cases, albeit as a shorthand expression, to refer to the different types of behaviour which are under scrutiny in each case" (Polyline v Ching Lin Chuen [2021] HKCFI 483).

The law has responded to the many types of behaviour with myriad causes of action and a diverse range of remedies. 

Fraudulent activity may include deception, though it is not essential. There is usually financial loss to the victim, but not always. The elements of fraud are set out (though not specifically defined) in the Theft Ordinance (Cap 210), which makes it a criminal offence to induce another person by deception and "with intent to defraud" to do anything that results in either a benefit or a prejudice to another person. 

In the criminal jurisdiction, the legal concept of dishonesty is itself highly complex, as it is both a subjective and objective standard: R v Ghosh [1982] QB 1053. It is subjective in terms of whether or not the defendant realised they were being dishonest, and objective in terms of whether the behaviour was dishonest according to the ordinary standards of reasonable behaviour. In the civil jurisdiction, the test is largely objective – see Royal Brunei Airlines v Tan [1995] 2 AC 378, Barlow Clowes International Ltd (in Liquidation) & Ors v Eurotrust International Ltd [2005] UKPC 37 and Ivey v Genting Casinos (UK) Ltd [2018] AC 391.

Fraud in Hong Kong

In Hong Kong, fraud commonly involves the fabrication or falsification of financial statements, which are either misrepresented or edited to omit key information. The goal is often to make a business appear more profitable than it is.

To be convincing, the fraudster usually implements a fake paper trail of underlying contracts, invoices and payment receipts. This may involve setting up a series of supposedly unrelated companies who act as the "suppliers" and "customers" of the company, giving the impression that funds are flowing through the business. Funds can even be recycled in a "round-robin" scheme, enabling fraudsters to funnel the same cash through the business over and again, falsely driving up revenue figures and enhancing the apparent value of the company. 

Misappropriation of funds

Fraudsters look for ways to extract funds from businesses that pass casual scrutiny. A company might purchase fixed assets, or acquire a business at an inflated price from a connected company, or acquire a property in an obscure location making it difficult to verify independently.

Fraud through Hong Kong

Hong Kong banks are often unwitting participants in the money-laundering process, partly due to the ease and relative anonymity with which an individual can set up a company and open a bank account.

Victims fall foul of all sorts of deceptions, including email and phone scams, investment and wire frauds, even impostor scams. Common ploys include persuading the victim to think they are transferring funds to the "police" for safekeeping, or tricking a bank into thinking it is following instructions from its customer, when in fact it is complying with instructions from an impostor. There is a constant stream of "CEO" frauds, in which unknown hackers clone company email addresses, study the written language of senior management officers and then instruct accounts executives to remit funds to bank accounts controlled by fraudsters. Cryptocurrency fraudsters trick victims into purchasing cryptocurrencies on fake crypto-trading platforms. While the victims may "see" growth of their portfolios on the fake platforms, the fraudsters have actually stolen the victims' property.

General Characteristics of Fraud Claims

The individual heads of claim that apply depend on the underlying facts. Usual causes of action that victims rely on include:

(a) fraudulent misrepresentation;

(b) deceit and fraudulent inducement;

(c) dishonest assistance (accessory liability);

(d) knowing receipt;

(e) constructive trust – arises when the recipient holds funds that they know have been paid to them by mistake;

(f) restitution on the grounds of unjust enrichment – where the unjust enrichment consists of a pecuniary benefit, the claim is known as an action for money had and received.

Claims (a) to (e) all involve some manner of knowledge or dishonesty on the part of the defendant. Claim (f) does not necessarily require the plaintiff to prove dishonesty or knowledge of the fraud on the part of the recipient. If plaintiffs can prove they have a proprietary claim (that is, applying common law and equitable rules of tracing, they can locate their funds in defendants' accounts) then, subject to any equitable defences the defendants might have, their claim may succeed without having to prove that the defendant had knowledge of the original fraud. Defendants regularly argue by way of defence that they have changed their positions in reliance upon the receipt of the plaintiff's funds or they are bona fide purchasers of the funds for value without notice of the fraud.

Other claims include breach of fiduciary duty and breach of the duties of good faith and fidelity, which may apply if the wrongdoer owes a duty to the victim, but fails to act in the victim's best interests. Conspiracy claims can be brought against those who make agreements with fraudsters with intent to injure the plaintiff. Conspiracy claims encompasses all the overt acts carried out pursuant to the conspiracy, together with the damage done to the victim (see Tempra Virginia Pido v Compass Technology Company Limited & Anor [2010] 2 HKLRD 537).

The most common relief sought for fraud is damages or restitution, although other remedies may also be sought, including injunctive or declaratory relief or an account of profits, which enables a plaintiff to recover any profits made by the defendant with the proceeds of the fraud.

A claimant whose agent has received a bribe may be able to avail themselves of the causes of action set out below.

In this context, an "agent" includes any person employed by or acting for another. The "principal" is the person who has granted an agent power to act on their behalf. There is not necessarily a requirement for a pre-existing legal, contractual or fiduciary obligation.

Against the Corrupt Agent Breach of Fiduciary Duty

In Attorney General of Hong Kong v Reid [1994] 1 AC 324, the defendant abused his public office by receiving bribes in exchange for preventing criminal prosecutions. The Privy Council (on appeal from Hong Kong) held that where fiduciaries receive bribes in breach of their fiduciary duties, the law regards the fiduciaries as holding the money they received on trust for the benefit of their principals as constructive trustees. Therefore, the principal can recover the bribe as well as any property acquired with it, or any profits made through its use.

The Hong Kong courts followed Reid in Secretary for Justice v Hon Kam Wing & Others [2003] 1 HKLRD 524. In Hon Kam Wing, the courts framed the same principle a different way, holding that equity regards the bribe as a legitimate payment intended for the principal. The payment must be paid over to the principal immediately upon receipt, and equity imposes a constructive trust over the funds or property for the benefit of the principal. The UK Supreme Court confirmed the principle in Reid in FHR European Ventures LLP & Ors v Cedar Capital Partners LLC [2014] UKSC 45, and has subsequently been endorsed by the Hong Kong courts.

In addition to suing for breach of fiduciary duty, a principal or employer can also sue corrupt agents or employees for breach of their employment or service contracts.

Criminal Sanctions

The Prevention of Bribery Ordinance (Cap 201) (POBO), enforced by the Independent Commission Against Corruption (ICAC), is the primary anti-corruption legislation in Hong Kong. The POBO prohibits the offer and acceptance of bribes in both the public and private sectors and establishes a series of offences for corrupt conduct. 

In the private sector, it is an offence under the POBO to offer an agent, or for an agent to solicit or accept any reward to perform any action without permission from their principal when conducting the principal's business. There is a defence available for agents acting with "lawful authority or reasonable excuse". On summary conviction, the maximum sentence for the private sector offence under the POBO is three years' imprisonment and a fine of HKD100,000. The sentences for the public sector offences under the POBO are significantly higher, the maximum being ten years' imprisonment and a fine of HKD1 million. 

In addition, a person found guilty of accepting a bribe will be ordered to repay the bribe (Section 12(1), POBO).

Similarly, the court has the power to order the return of property from the convicted person to the victim direct by ordering the return of property (Section 84, Criminal Procedure Ordinance (Cap 221)).

It is technically possible to find a company liable for soliciting or accepting a bribe, though in practice most prosecutions target individuals.

Criminal and civil claims can be brought against parties who assist or facilitate fraudulent acts. In some cases, claims (in particular claims for restitution) are available even where the assisting party has no knowledge of the fraud. Some of the key parties who assist or facilitate fraudulent acts include:

  • banks (inadvertently);
  • account holders who receive the proceeds of fraud directly from the fraudster (often with knowledge of the fraud);
  • second-level recipients (sometimes inadvertently); and
  • professional service providers such as auditors and accountants.

Banks

Nowadays, banks are acutely aware of the problem of money laundering and of their commercial and social responsibility to prevent illegal transactions taking place through their customers' accounts. 

When a bank is put on notice of a fraud and that its customer holds funds on constructive trust, the bank can be liable in damages for breach of that constructive trust if it subsequently moves the funds. It is therefore important to put the bank on notice of the victim's equitable proprietary interest in the funds as soon as a fraud is discovered.

The Anti-Money Laundering and Counter-Terrorist Financing Ordinance (Cap 615) (AMLO) empowers the police to launch criminal proceedings against banks for ignoring or assisting in money laundering.

Account Holders

The architect of the fraud rarely holds the bank account into which the victim remits their funds. Rather, criminal rings will recruit "money mules" to set up and manage Hong Kong bank accounts to launder the proceeds of fraud. These account holders frequently live in Mainland China, beyond the jurisdiction of the Hong Kong courts and police. 

Such bank accounts are usually corporate accounts held by shell companies, with nominal share capital and a single director and shareholder. The signatories are usually individuals residing on the Mainland and the account opening documents will usually state low monthly salaries. The purpose of the business is usually random and innocuous, the sale of frozen meat or trading air purifiers. These people are the pawns in the money-laundering process, not the kings and queens. Tracking them down for arrest is not just difficult, because they are outside the jurisdiction, but of limited utility when found.

Civil claims against the account holder company are limited to proprietary claims against the company (or individual bank account holder, if the account is not a corporate account) such as money had and received and unjust enrichment, in order to recover what funds are left. Where the account holder is a Hong Kong individual, the police will investigate and, if possible, press charges. 

Those who knowingly assist in money-laundering operations risk being charged with a number of criminal offences, such as conspiracy under Section 159A Crimes Ordinance (Cap 200) or the common law offence of conspiracy to defraud. Civil causes of action commonly pleaded against accessories to wrongdoing include knowing receipt and dishonest assistance.

The Organised and Serious Crimes Ordinance (Cap 455) (OSCO) empowers the police to charge individuals who deal with property they know, or have reasonable grounds to believe, are the proceeds of an indictable offence. The offender is liable on conviction on indictment to a fine of HKD5 million and imprisonment for 14 years, or on summary conviction to a fine of HKD500,000 and imprisonment for three years.

The prosecution may also apply for a restraint order in order to prohibit a person from dealing with their property (Section 15, OSCO). Restraint orders can effectively freeze bank accounts holding the proceeds of fraud.

Second, Third and Higher-Level Recipients

There are usually several rounds of dissipation. First-level recipients (who are often acutely aware that the funds they have received are the proceeds of fraud), usually quickly transfer the funds on to second-level recipients, who often then transfer the funds onwards. These higher-level recipients tend to have less knowledge of the underlying fraud than those from whom they received the funds.

Victims must therefore decide whether to apply for an injunction or seek other interim relief against the second and third-level recipients to secure and recover their fund, or whether to apply for a disclosure order to find out where the funds went next. Cost considerations are paramount. 

Victims may be entitled to bring a proprietary claim in equity over the funds found in the hands of the second or third-level recipients. Whether or not such claims succeed will depend on whether the recipients have a legitimate reason for receiving the funds. Recipients often argue that they received the funds pursuant to a legitimate business transaction or, as is often the case in Hong Kong, in the course of an underground currency exchange – exchanging RMB for HKD or USD. Recipients often seek to rely on the equitable defences mentioned above of bona fide purchaser for value or change of position to defeat a proprietary claim. 

However, the Hong Kong courts have ruled that defendant recipients may not invoke these defences where they use underground banking to circumvent the foreign exchange laws of Mainland China (see the authors' case DBS Bank (Hong Kong) Ltd v Pan Jing [2020] HKCFI 268 and TTI Global Resources Hong Kong Ltd v Hongkong Myphone Technology Co Ltd [2021] HKCFI 306).

Professional Service Providers

Professionals engaged to carry out services such as maintaining accounts, conducting audits or calculating tax liabilities may unwittingly facilitate a fraud. They may find themselves exposed to tortious claims such as negligence and for breach of professional standards. 

In general, the limitation period in Hong Kong for causes of action in both tort and contract (except contracts under seal) is six years from the date on which the cause of action accrued (Section 4 Limitation Ordinance (Cap 347) (LO)). 

Where fraud, mistake or concealment has occurred, the limitation period does not begin until the fraud, mistake or concealment is discovered, or could have been discovered with reasonable diligence (Section 26(1) LO).

However, such postponement of a limitation period will not enable a claimant to recover any property, enforce a charge, or set aside a transaction affecting that property against an innocent third party who purchased the property with valuable consideration (Section 26(4) LO).

At the opposite end of the spectrum, there is no limitation period for a beneficiary to bring an action in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy, or to recover trust property or proceeds from the trustee (Section 20 LO). Although there is no statutory limitation period for such action, the equitable doctrine of laches may still apply and bar such claims.

In order to recover property that has passed from hand to hand, victims must first identify and locate the property and prove that it belongs to them.

Victims may be able to trace their funds into the property and thus claim a proprietary interest.

The tracing rules developed by the English courts and applied in Hong Kong will determine if the victims can claim a proprietary interest in the property they have located. Proprietary claims are powerful because they take priority over the claims of other creditors.

Following and Tracing

Following is the process of identifying the same asset as it moves from hand to hand. Tracing is the process of identifying a new asset as a substitute for the old. Tracing is not a remedy. It is a process which, if properly followed, enables victims to identify, locate and ultimately recover their property.

Property can be traced both at common law and in equity. At common law, the right to trace ceases once the property of the victim is mixed with the property of the wrongdoer – for example, when the proceeds of fraud are deposited into a bank account with an existing credit balance. However, equity allows tracing into mixed funds.

Tracing in Equity: the Subordination Principle

Where the proceeds of fraud are mixed with other funds, victims must use the tracing rules and the principles of subordination to identify their property. Broadly speaking, the subordination principle holds that, as between the victim and the wrongdoer, the equities are unequal and favour the victim. This means that where an asset is exchanged for another, the victim can choose whether to follow the original asset into the hands of the new owner, or to trace its value in the hands of the previous owner (Foskett v McKeown). The courts have established the following general rules to assist identifying and tracing in equity.

  • If the funds of two innocent parties are mixed, the "first-in, first-out" rule applies (the rule in Clayton's Case, Devaynes v Nobel (1816) 35 ER 781). This rule presumes that the funds first paid into the account are the funds first paid out. 
  • If the wrongdoer mixes HKD10 of their own money with HKD10 received from a victim, and then dissipates HKD10 from the mixed funds, the victim is entitled to presume that the wrongdoer has spent their own money first, and kept the victim's money intact (Re Hallett’s Estate (1880) 13 Ch D 696).
  • When the wrongdoer mixes HKD10 of their own money with HKD10 of a victim's money, then uses HKD10 to buy a painting and dissipates the remaining HKD10, equity deems the wrongdoer to have used the victim's money to buy the painting, so that the painting becomes the traceable proceeds of the victim's money (Re Oatway [1903] 2 Ch 356, 360).
  • More recently, equity allows backward tracing (see: The Federal Republic of Brazil v Durant International Corpn [2015] UKPC 35). Backward tracing allows plaintiffs to claim funds that have left the bank account of the wrongdoer before their funds were deposited, so long as they can prove that the payment out was in anticipation of their funds being paid in.

Using these principles, victims of fraud can preserve their proprietary claim over the proceeds of the fraud even when mixed with other assets. The subordination principle can work against both the wrongdoer and recipients of transfers from the wrongdoer's account. 

Trust Claims

Where a victim can establish that they are the beneficiary under a trust, they can trace the trust property into substitute assets, to expand their claim in terms of both people and property. Trust claims and tracing claims are therefore important both procedurally and substantively.

Gains Made on the Proceeds of Fraud

Where the wrongdoer invests the proceeds of fraud successfully, the victim may be entitled to recover profits in addition to the original sum. This is particularly the case where the fraudster owes the victim a fiduciary duty. 

The victim can recover the funds by applying to court for a disgorgement order, an order that forces the defendant to repay the profit gained from the fraud. The Securities and Futures Commission (SFC) has obtained numerous disgorgement orders to recover profits in cases of insider trading or securities fraud. Alternatively, the court can order an account of profits, which can then be claimed by the victim.

Vesting Orders

In recent years, a practice has developed in Hong Kong which enables victims of frauds to obtain vesting orders under Section 52(1)(e) of the Trustee Ordinance (Cap 29) (TO).

Vesting orders work as follows:

  • a defendant who receives property obtained by fraud holds the property as constructive trustee for the victim;
  • a credit balance in the defendant's bank account represents a debt owed by the bank to the defendant;
  • the victim applies under Section 52(1)(e) TO for an order that the defendant's right to sue for and recover the sums against the bank be vested in the victim, and that the bank should transfer the sums directly to the victim;
  • before making the application, the bank must be joined to the proceedings so that any vesting order binds the bank.

Although there are conflicting decisions on whether the recipients of funds obtained by fraud are "true" trustees for the purpose of Section 52 TO, the authors consider it is sensible and practical law. However, in view of the differing approaches taken by Hong Kong judges, many victims of fraud opt for the conventional approach, which is to apply for garnishee orders against the defendant's bank under Order 49 of the Rules of High Court (Cap 4A) (RHC) (discussed further below).

Although there is no standard pre-action protocol for fraud cases in Hong Kong, a number of pre-action steps are available to victims, which enable them to obtain and preserve evidence and prevent wrongdoers from dissipating their assets.

Damage Control: Preservation of Assets

As soon as fraud is discovered, victims should act fast to stop the funds from being dissipated. There is little point in taking recovery action if some or all of the lost funds have not been located and frozen. Victims should follow these general guidelines:

  • tell the bank – immediately inform the bank and request the bank to reverse the transfer;
  • tell the police – file a Suspicious Transaction Report with the Joint Financial Intelligence Unit (JFIU), the anti-money laundering, anti-terrorist financing arm of the Hong Kong Police; 
  • consider obtaining interim injunctive relief (see below); and/or
  • consider obtaining disclosure orders, in particular Norwich Pharmacal orders.

As discussed in 1.7 Prevention of Defendants Dissipating or Secreting Assets, victims can apply to court for injunctive relief to freeze property over which the victim has a proprietary claim, and restrict alleged wrongdoers from dealing with their assets. These are important steps in any fraud action. Injunctions can be granted in respect of assets within the jurisdiction or worldwide, and can restrain wrongdoers from removing or disposing of assets.

Where victims of fraud successfully freeze assets, civil proceedings should be commenced to recover the funds.

Pre-action Disclosure

As discussed in 2. Procedures and Trials, pre-action disclosure against third parties (such as Norwich Pharmacal orders) can be sought to obtain information about potential defendants, which the third party has in its possession.

Pre-action disclosure is also available against potential defendants under RHC Order 24 rule 7ARHC and Section 42 of the High Court Ordinance (Cap 4). Such orders can assist an applicant who is aware of the identity of potential suspects but does not have sufficient details to advance a claim.

Private investigators can also be engaged to identify potential defendants and available assets.

There are several weapons in the legal arsenal to prevent wrongdoers from dissipating or secreting assets before a judgment is obtained against them. 

Mareva Injunction

Mareva injunctions restrain defendants from disposing of their assets with the intention of frustrating a judgment later made against them. Mareva injunctions operate in personam.

Mareva injunction applications are usually made ex parte – that is, without notice to the defendant. When an application for a Mareva injunction is made ex parte, the plaintiff is obliged to make full and frank disclosure to the court (ie, tell the court everything, even the weak points of the application). Shortly after the court grants a Mareva injunction, the defendant will have an opportunity to challenge and set aside the order. 

An applicant can apply for a Mareva injunction at any time before or during the litigation process, so long as the court is satisfied that:

  • there is a good arguable case on a substantive claim against the defendant;
  • the defendant has assets within Hong Kong;
  • the balance of convenience is in favour of granting the injunction; and
  • there is a real risk of dissipation or secretion of assets.

If defendants fails to comply with the terms of a Mareva injunction, they may be liable for contempt of court and ordered to pay a fine, or sent to prison.

Proprietary Injunction

If the victim wants to preserve specific assets or money over which they claim ownership, then they should seek a proprietary injunction. The threshold for obtaining a proprietary injunction is lower than obtaining a Mareva injunction as the plaintiff only has to show that there is a serious issue to be tried in relation to the assets that are in dispute. There is no need to prove that there is a real risk of dissipation of assets (Pacific Rainbow International Inc v Shenzhen Wolverine Tech Ltd [2017] HKEC 869, paragraphs 37-39).

Court Fees

Court fees are inexpensive in Hong Kong. The cost of issuing a writ is HKD1,045 and a further fee of HKD1,045 is payable for each injunction or Norwich Pharmacal application that is made.

Cross-Undertakings in Damages

A plaintiff who seeks injunctive relief must give an undertaking to pay the defendant any damages the defendant might suffer if it later transpires that the injunction should not have been granted. This is known as a cross-undertaking in damages. Cross-undertakings are provided to mitigate the risk of the loss that may be caused by the injunction on the defendant. As a condition of granting an injunction, the cross-undertaking often must be "fortified", either by a bank guarantee or a payment into court. In cases where there is a strong arguable case of fraud, the court may not order fortification until the defendant appears before the court. Plaintiffs must fully understand the requirements of the cross-undertakings in damages before embarking on an application for injunctive relief. 

The Effect on Third Parties

It is a contempt of court for any person notified of an injunction knowingly to assist in or permit a breach of the order. Any person doing so may be imprisoned, fined or have their assets seized.

Generally, the terms of an injunction will not affect or concern anyone outside Hong Kong until it is enforced or declared enforceable outside Hong Kong.

Prohibition against Debtors Leaving Hong Kong

RHC Order 44A enables a plaintiff or a judgment creditor (a party with a judgment in its favour), to apply to court ex parte for an order prohibiting a debtor from leaving Hong Kong. This ensures that the debtor cannot escape to a more judgment-proof jurisdiction.

If the judgment amount has not yet been crystallised, the court will only make the order if there is reason to believe that the debtor is about to leave Hong Kong, which would impede enforcement.

Even where the judgment amount is clear, the court will only grant the application if the prohibition is conducive to the enforcement of a judgment involving money or property.

Mareva Injunctions

Ancillary to the order restricting the defendant from dealing with their assets, a Mareva injunction may also require the defendant to disclose what has become of the plaintiff's property, and also disclose details of all assets owned or controlled by them, whether in their own name or not.

The Hong Kong courts have the power to grant Mareva injunctions on a worldwide basis and require the defendant to disclose the nature and value of their worldwide assets.

Ancillary Disclosure Orders

The court has inherent jurisdiction to order the defendant to:

  • provide a statement of their assets; and
  • give discovery of documents or answer interrogatories for the purpose of ascertaining the existence, nature and location of those assets.

The standard form Mareva injunction contained in Practice Direction 11.2 refers to assets "whether in his [the defendant's] own name or not, and whether solely or jointly owned". As such, the disclosure order would include assets held in the name of the defendant, assets held jointly with other person(s), as well as those held by nominees on the defendant's behalf.

Disclosure of assets under a Mareva injunction will normally be by affidavit. If the disclosure is unsatisfactory, the court may order a further and better affidavit and, ultimately, cross-examination on affidavit before a judge or examiner.

If a defendant fails to comply with a disclosure order, they may be liable for contempt of court and ordered to pay a fine or sentenced to imprisonment.

As discussed above, a plaintiff seeking a Mareva injunction is required to give a cross-undertaking in damages.

Anton Piller Orders

Where it is feared that important evidence may be destroyed or suppressed, a plaintiff may obtain a search and seizure order (known as an Anton Piller order) requiring the defendant to permit the plaintiff to enter the defendant's premises and inspect, seize and remove documents relating to the underlying matter into safe custody.

Although an Anton Piller order permits a physical search of the documents at the defendant's premises, it does not amount to a search warrant and therefore no forcible entry to the premises can be made.

The application for an Anton Piller order is made ex parte (hence there is a duty to give full and frank disclosure) and is executed without notice to the defendant.

The pre-conditions for making an Anton Piller order are:

  • there must be an extremely strong prima facie case;
  • the potential or actual damage must be very serious;
  • there must be clear evidence that the defendant has in their possession relevant materials or documents, and that there is a real possibility that they may destroy such material before any inter partes application can be made;
  • the harm to be caused by the execution of the order to the defendant must not be excessive or out of proportion to the legitimate object of the order.

Even if the above conditions are satisfied, the court has residual discretion to consider whether to grant an Anton Piller order. Due to their draconian effect, Anton Piller orders are only granted in "rare and extreme cases" where it is necessary in the interests of justice and in terms no wider than is necessary to achieve the legitimate objective of the order. 

A plaintiff will be required to give a cross-undertaking as to damages as part of the Anton Piller order.

For victims who fall prey to fraudsters, the disclosure of details of the wrongdoer is crucial to identify the wrongdoer, trace and secure the lost property and make a recovery. Such disclosure orders are called Norwich Pharmacal orders and are an important tool in combatting fraud. 

Norwich Pharmacal Orders (NPO)

NPOs are usually sought against banks, who inadvertently handle the stolen funds, have visibility over when and where they went next, as well as the identity of the account holder. An NPO can also be made against cryptocurrency exchanges. 

The information sought by the plaintiff can range from remittance advices and bank statements to bank account opening documents disclosing the identity of the bank account holder and signatories. 

NPOs do not traditionally operate extraterritorially. The Hong Kong courts will not usually require the Hong Kong branch of a foreign bank to disclose information held by the foreign branch. Questions of comity arise because the rights and duties of the foreign branch of the bank will be subject to the laws of the foreign jurisdiction, not the laws of Hong Kong. However, the recent decision in A1 and A2 v R1, R2 and R3 [2021] HKCFI 650, has expanded the scope of the operation of Norwich Pharmacal orders over bank accounts held in foreign branches of Hong Kong banks. 

The case involved a cross-border fraud running into the hundreds of millions of US dollars. The applicants successfully persuaded the Hong Kong court to grant disclosure orders over the Macau branches of two Hong Kong banks. The logic was that both Hong Kong banks were regulated by the Hong Kong Monetary Authority, which requires them to ensure that their overseas branches in Macau comply with extensive record keeping requirements, including keeping various records for at least five years for the purposes of (amongst other things) tracing criminal property. On that basis, it was reasonable to assume that the banks would have in their possession documents and information relating to the relevant accounts.

The two-step process

In Asiya Asset Management (Cayman) Ltd v Dipper Trading Co Ltd [2019] HKCFI 1090, the High Court of Hong Kong directed that in non-urgent cases a plaintiff who seeks an NPO against a bank should put the bank on notice of the impending NPO application rather than proceeding ex parte. 

In order to prevent the bank from tipping off the wrongdoer in relation to the legal proceedings, the plaintiff should separately apply ex parte for a gagging order against the bank, pending the hearing of the application for the NPO.

In A1 and A2 v R1, R2 and R3, the court confirmed that the two-step approach should be followed in "all save the most exceptional of cases". The process of putting the bank on notice and simultaneously obtaining a gagging order to protect the applicant and avoid the bank being put in an otherwise difficult situation of breaching its duty of confidentiality otherwise owed to its customer, provides, "the proper balancing of interest between (a) the party seeking the information […] and (b) the bank's customer". The learned judge added that "those safeguards cannot be avoided in the name of convenience or to save costs, and are not overridden by the understandable wish to obtain information as quickly and cheaply as possible".

When to apply

An NPO can be obtained before or after the commencement of proceedings.

Where there are proceedings on foot and an NPO is required to identify further wrongdoers, the order should not be sought in the existing proceedings and a separate originating summons should be issued.

Form of NPO application

The application is made pursuant to the inherent jurisdiction of the court by way of an originating summons. The originating summons should be in Form 8 or Form 10 of Appendix A to RHC (depending on the urgency of the application) and should set out the full terms of the orders sought.

The application must also be supported by affidavit evidence setting out:

  • the factual background;
  • if an application is made without notice, the reason for the without notice application and the urgency or secrecy of the application;
  • evidence to show that the mere witness rule will not be breached (ie, that without the information an action cannot be brought);
  • evidence that the respondent has been involved with or mixed up in the wrongdoing;
  • specify the documents or information sought;
  • the reason the respondent is believed to be in possession of the documents or information sought;
  • the purpose for which the documents and information is required;
  • that disclosure is necessary in the interests of justice;
  • any other factors relevant to the exercise of the court's discretion; and
  • set out the cross-undertaking in damages, and attach any evidence in support of the undertaking.

A draft NPO should also be prepared.

Pre-action Discovery

A party may apply for pre-action discovery against any party under RHC Order 24 rule 7A(1).

The documents sought must be shown to be "directly relevant" to an issue arising in the proceedings and necessary for disposing fairly of the cause or matter or for saving costs. A document is "directly relevant" if it is likely to be relied on in evidence by any party in the proceedings or the document supports or adversely affects any party’s case. This would exclude background and "chain of enquiry" documents.

The application is made by an originating summons in expedited form (Form 10 of Appendix A to RHC) with supporting affidavit. The person against whom the order is sought must be made the defendant and served in the usual way.

Discovery against a Non-Party in an Existing Action

A party to an existing action may apply for an order for the disclosure of documents by a person who is not a party to the proceedings. The application is made pursuant to RHC Order 24 rule 7A(2). The application is made by way of summons in the action, together with a supporting affidavit.

The summons and supporting affidavit must be served on the third party personally (against whom discovery is sought) as if it were an originating process and served on all the parties to the action.

The supporting affidavit must (i) specify or describe the documents sought, and (ii) show that the person against whom the order is sought is likely to have or have had such documents in their possession, custody or power.

The test for relevance in non-party disclosure applications is the same as for other types of discovery which includes background documents and "chain of enquiry" documents in the Peruvian Guano sense.

Ex parte applications are appropriate in cases of urgency or where there are grounds for believing that defendants will take steps to frustrate the proceedings if they become aware of the application.

A number of procedural orders can be obtained on an ex parte basis including:

  • Mareva injunctions and (where appropriate) ancillary disclosure orders (see 1.7 Prevention of Defendants Dissipating or Secreting Assets and 2.1 Disclosure of Defendants' Assets);
  • Anton Piller orders (see 2.2 Preserving Evidence).

The court has jurisdiction to make ex parte orders against, for example, banks for Norwich Pharmacal discovery, but the courts have said that "it would however be hard to think of any appropriate case where it should exercise its discretion to do so on that basis" (Asiya Asset Management (Cayman) Ltd v Dipper Trading Co Ltd [2019] HKCFI 1090). The plaintiff must therefore put the bank on notice. This delay, however necessary in the interests of justice to the bank, is frustrating in the context of fraud where time is of the essence.   

It should be noted that orders given ex parte will generally operate for a limited time and the substantive hearing of the matter will be adjourned to a later date. This gives the defendant an opportunity to oppose the injunction or order sought (ie, an inter partes hearing).

In all ex parte applications, there is a duty to give full and frank disclosure of all material matters. If there is any material non-disclosure on the part of the applicant, the order is at risk of being set aside.

Quite often the law enforcement and civil lawyers work in tandem to recover funds. In cases of bank wire fraud where a victim has been tricked into transferring funds into another bank account as a result of fraud, the victim usually files a report with the police. The report will contain details of the incident such as the time and date of the transfer, brief facts of the incident, name of suspect(s) and financial loss; it can be done at any police station or via the e-Report Centre.

The police will usually contact the recipient bank to see if the funds are still in that account. If the matter has been reported promptly, the fraudster may not have had the opportunity to move the funds elsewhere and they may still be in the account. If the funds have been transferred out of the bank account, or there is only a nominal amount left, the police usually obtain a warrant ordering the recipient bank to disclose the relevant bank records to identify the second-level recipients.

There has been a practice for the police to request the recipient banks to make a suspicious transaction report to the JFIU and then issue a letter of no consent (LNC) to "freeze" the funds in that account.

The LNC regime was recently challenged by judicial review in Tam Sze Leung & Ors v Commissioner of Police [2021] HKCFI 3118, in which the court decided that such "informal freezing" is unconstitutional, especially in light of Section 15 of the OSCO, which provides a procedure for applying for a restraint order. 

This latest development has created uncertainty, and law has no love of uncertainty. The efficient use of the Mareva injunction jurisdiction is now even more important than before. Until the decision in Tam Sze Leung is considered by another court, victims of fraud would be wise to obtain urgent Mareva relief rather than rely on the sensible and practical "informal freezing" regime developed by the Hong Kong police.

If Tam Sze Leung is not followed, or if a legislative basis for the LNC is enacted, the LNC regime will resume its status as a powerful and practical tool in fraud cases where time is always of the essence.

Where a criminal prosecution is on foot, the defendant would usually seek to stay the civil proceedings pending the outcome of the criminal process. Furthermore, a certificate of conviction is admissible in evidence in the civil action, so if the plaintiff has managed to locate and secure the proceeds of the fraud or other assets of the defendant, the criminal trial may aid the process of making a recovery before the civil courts.

Default Judgment

A plaintiff may obtain judgment without a trial ("default judgment") where a defendant has failed to give notice of intention to defend and the claim falls within one of the classes of claim under RHC Order 13 rules 1-4 (ie, a claim for a liquidated sum, unliquidated damages, detention of goods, or possession of land).

Where the writ is endorsed with multiple heads of claim (eg, a proprietary claim and a claim for monies had and received), it is possible for the plaintiff to abandon the proprietary claim in order to come within the scope of RHC Order 13 rules 1-4.

The requirements for entering judgment by default are:

  • that the writ has been duly served;
  • that the defendant has not filed an acknowledgment of service within the time required, or an acknowledgement has been returned but contains a statement that the defendant does not intend to defend;
  • proof of service of the writ by way of an affidavit of service; and
  • that in a claim for the recovery of land, no relief is claimed of the nature specified in RHC Order 88 relating to mortgage transactions.

The above requirements must be complied with strictly, otherwise the judgment is irregular and may be set aside.

Where the plaintiff is seeking declaratory relief or other relief, which does not fall within RHC Order 13 rules 1-4, and the defendant fails to serve its defence, the plaintiff can apply for default judgment under RHC Order 19 rule 7. 

Where the default judgment sought involves a declaration, the court retains discretion to decide whether to grant such relief, and will only grant declaratory relief where there is a genuine need and justice might not be done if such relief was denied.

Where an acknowledgement of service is filed, the plaintiff must serve a notice in writing of their intention to enter judgment in default of the filing of a defence not less than two clear days before entering judgment (RHC Order 19 rule 8A).

Summary Judgment

Summary judgment refers to a judgment obtained without a full trial on the ground that the defendant has no defence to the claim. The procedures for applying for summary judgment are provided in RHC Order 14. Summary judgment is available to most actions begun by writ and, since 1 December 2021, it is now available for claims based on allegation of fraud.

The application for summary judgment should be made as soon as possible after notice of intention to defend has been given and after a statement of claim has been served. The application is made by affidavit, which must (i) verify the facts upon which the claim is made, and (ii) state that in the deponent's belief there is no defence to the claim.

Where a defence has been served, the affidavit should address the allegations made in the defence and show why, notwithstanding the defence, the plaintiff still believes that there is no defence to the claim.

The application must be made promptly, as delay may be a reason for refusing summary judgment.

It is well established that fraud or dishonesty must be distinctly alleged and sufficiently particularised in pleadings. This does not mean that the words "fraud" or "dishonesty" must necessarily be used. However, the pleadings must set out the primary facts that are relied upon to justify any alleged inference of fraud or dishonesty. It is not open to the court to infer dishonesty from facts that have not been pleaded.

The court has inherent jurisdiction to strike out allegations of fraud made without proper evidence. Lawyers also have a professional duty to ensure that there is clear and sufficient evidence to support a pleading of fraud or dishonesty.

Rapidly developing technology is leading to increasingly sophisticated cyber-attacks and fraud, often conducted in foreign jurisdictions and behind a veil of anonymity. The English courts are innovating in line with these developments, and in 2018 granted the first worldwide freezing order against "persons unknown". In addition, the courts have permitted service of freezing orders by way of Facebook and WhatsApp messenger.

The Hong Kong courts have granted injunctive relief against persons unknown, albeit not yet in the context of fraud. In 2016, the Hong Kong courts made an order restraining the disclosure of two audio recordings made by "persons unknown" of a meeting of the Council of the University of Hong Kong. In 2018, an interim injunction was awarded to restrain "persons unknown" from busking and carrying out other outdoor performance activities in a shopping arcade in Hong Kong. 

A case has not yet come before the Hong Kong courts in relation to unknown fraudsters, but the courts have already shown that they are committed to adapting in order to protect the rights of the victim plaintiff. If and when an application is made against "fraudsters unknown", the decision of the English courts will be highly persuasive. 

A witness in Hong Kong can be compelled to attend court to give evidence by a writ of subpoena. A subpoena can be issued either to obtain oral evidence at trial (subpoena ad testificandum) or to obtain documents (subpoena duces tecum).

The writ of subpoena must be in prescribed form (No 28 or 29 in Appendix A of RHC). Before a subpoena can be issued, a praecipe must be filed in the High Court Registry together with a note from a judge or master authorising the issue of the subpoena.

Since a subpoena is an order of the court, deliberate failure to obey the order by non-attendance or non-production of documents may amount to contempt, and the intended witness may be liable to a fine or imprisonment.

An important feature of any fraud claim is the extent to which the knowledge of directors and officers of a company can be attributed to the company.

The starting points are the "primary rule" and the general rules of agency. The "primary rule" looks at the company's articles of association or company law statutes and identifies whose decisions bind the company. For example, the articles of the company may state that the decision of the board of directors or the majority of shareholders is treated as the decision of the company for a specified purpose. In such a case, the knowledge of the board or the majority of shareholders will be attributed to the company.

These starting points are subject to any special rules of attribution that the court may fashion based on the particular context (eg, where a particular statutory provision requires such rules so that it is not frustrated) and, importantly in fraud cases, to the "fraud exception".

The special rules of attribution will depend on the facts of the particular case and the language and legislative purpose of the relevant statutory provisions (Moulin Global Eyecare Trading Limited (in liquidation) v The Commissioner of Inland Revenue (2014) 17 HKCFAR 218).

In deciding whether the "fraud exception" applies, the Hong Kong Court of Final Appeal in Moulin Global distinguished the following situations.

  • Where a company commences legal action against its directors and officers for wrongdoing, which caused loss to the company, the knowledge of the director or officer is not attributable to the company because it would be "absurd and unjust to permit a fraudulent director or employee to be able to use his own serious breach of duty to his corporate employer as a defence".
  • Where a third party takes legal action against the company for the fraudulent conduct of a director or employee, the knowledge of the director or officer is attributable to the company, because the company must take responsibility for such fraudulent conduct, even if the company may be a victim in a way.

Common Law

It is well established that a company is a separate entity from its beneficial owners. Beneficial owners are often said to exist behind a "corporate veil" and are protected from liability for the actions of the company.

However, in certain circumstances, the corporate veil can be pierced so that the actions of a company are treated as the actions of its shareholders. When the company has been used as a vehicle for fraud, it is possible to pierce the corporate veil and bring claims against the beneficial owners and directors of the company. The plaintiff has to establish the following in order to pierce the corporate veil (see VTB Capital plc v Nutritek International Corp [2012] EWCA Civ 808):

  • the company is involved in some impropriety linked to use of the company structure to avoid or conceal liability; and
  • the wrongdoer controls the company at the time of the relevant transaction.

Normally, the court will pierce the corporate veil only when there is clear evidence of fraud. It is legitimate to use a limited liability company as a vehicle of business in order to minimise the risk of business (Bakri Bunker Trading Co Ltd v Owners and Persons Interested in Ship Neptune [1986] HKLR 345; China Ocean Shipping Co v Mitrans Shipping Co Ltd [1995] 3 HKC 123).

Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap 32) (CWUMPO)

If, in the course of the winding up of a company:

  • any person carries on the business of the company with an intent to defraud creditors, or for any fraudulent purpose, the court may find such a person personally responsible for all or any of the debts or other liabilities of the company (Section 275, CWUMPO);
  • any person misapplies or retains any money or property of the company, they may be compelled to repay or restore the money or property (Section 276, CWUMPO).

For example, if the directors transferred the assets of the company to themselves in the course of the company's winding up, the directors may be liable under Section 276 of CWUMPO.

Shareholders can bring claims against fraudulent directors under both common law and statute.

General Principles

Where directors have breached their duties owed to the company, or where any person has infringed any rights of the company, the general rule is that the proper plaintiff is the company itself (Foss v Harbottle (1843) 67 ER 189).

Where both the company and a member have a cause of action arising from the same conduct, but the member’s loss is not a separate and distinct loss, but is reflective of the company’s loss, the member is not entitled to bring a personal action to recover that reflective loss (Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] Ch 204). However, the UK Supreme Court has since held that this rule is limited to claims by shareholders which, as a result of actionable loss suffered by their company, the value of their shares or of the distributions they receive as shareholders, has been diminished (Marex Financial Ltd v Sevilleja [2020] 3 WLR 255 (UKSC)). Marex has been mentioned in recent Hong Kong judgments but has so far not been directly applied. The authors consider Marex is good law and should be applied in Hong Kong.

Common Law Derivative Action

Under common law, a shareholder can commence a derivative action in relation to a fraud on the company (Edwards v Halliwell [1950] 2 All ER 1064, 1067). The shareholder has to establish that:

  • the wrongdoers have committed fraud on the company; and
  • the wrongdoers are in control of the company – the element of control is often stated to be control of voting power in the general meeting (Burland v Earle [1902] AC 83, 93-94).

Statutory Derivative Action (Pt 14, Division 4, Companies Ordinance)

With the permission of the court, a shareholder can commence a statutory derivative action on behalf of the company in respect of misconduct committed against the company (Section 732, Companies Ordinance). "Misconduct" means "fraud, negligence, breach of duty, or default in compliance with any Ordinance or rule of law" (Section 731, Companies Ordinance).

The court may permit the shareholder to commence a derivative action if it is satisfied that:

  • on the face of the application, it appears to be in the company’s interests that leave be granted;
  • there is a serious question to be tried;
  • the company has not itself brought the proceedings; and
  • the shareholder has served a written notice on the company in accordance with Sections 733(3)-733(4) of the Companies Ordinance (unless the requirement has been dispensed with by the court pursuant to Section 733(5)).

Statutory injunction (Pt 14, Division 3, Companies Ordinance)

Sections 728-730 of the Companies Ordinance allow certain individuals, including shareholders, the right to seek an injunction to restrain breaches of the Companies Ordinance or breaches of fiduciary duties by directors.

Shareholders and creditors of the company whose interests have been, are or would be, affected by the conduct can seek an injunction under Section 729 of the Companies Ordinance.

Joinder of Parties

Under RHC Order 15 rule 6, the court can add any of the following persons as a party to an action:

  • any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute can be completely determined; or
  • any person with whom there may exist a question connected to any relief or remedy claimed by a party to the action, which the court considers it just and convenient to determine as between the person and that party as well as between the parties to the cause or matter.

Extraterritorial Jurisdiction

There are generally three distinct ways for a civil plaintiff to establish the jurisdiction of the Hong Kong courts:

  • submission to jurisdiction – jurisdiction of the Hong Kong court may be established by demonstrating that the defendant has, or is deemed to have, voluntarily submitted to it;
  • service of process on the defendant within Hong Kong;
  • service of process on the defendant outside Hong Kong – in most cases, leave from the court must be obtained by applying ex parte upon affidavit evidence.

The power of the Hong Kong courts to exercise extraterritorial jurisdiction is subject to RHC Order 11, which sets out the requirements for service of process out of the jurisdiction.

Service of Writ Out of the Jurisdiction

If a foreign party is added as a defendant to a claim, the plaintiff has to seek leave from the court under RHC Order 11 to serve the writ out of the jurisdiction. An application for leave is typically made ex parte with an affidavit in support. The plaintiff must satisfy the court that the claim falls within one or more of the "gateways" under RHC Order 11 rule 1(1) (or at least a good arguable case that it does), and that there is a serious issue to be tried on the merits of the underlying claim. The court will also consider whether Hong Kong is the appropriate forum for the trial of the action.

One possible gateway is RHC Order 11 rule 1(1)(c). It applies to the situation where, in an action begun by writ, the claim is brought against a person duly served within or out of the jurisdiction and a person out of the jurisdiction is a necessary or proper party thereto.

The following conditions have to be met on affidavit for a successful application under RHC Order 11 rule 1(1)(c):

  • genuine proceedings are properly commenced and pending within the jurisdiction against another “anchor” defendant (either in or outside Hong Kong) that involve a real issue, which the plaintiff may reasonably ask the court to try;
  • the proposed defendant is a "necessary" or "proper" party thereto;
  • that the Hong Kong court is the appropriate forum in which the case should be tried, but bearing in mind the action already pending here.

Another important gateway in this area of the law is RHC Order 11 rule 1(1)(p), which provides that service of a writ out of the jurisdiction is permissible where: "the claim is brought for money had and received or for an account or for other relief against the defendant as a constructive trustee, and the defendant's alleged liability arises out of acts committed whether by him or otherwise, within the jurisdiction." 

Separately, RHC Order 69 sets out the requirements for service of process within Hong Kong from a country or place outside Hong Kong.

Enforcement of Criminal Offences

The principal authorities that investigate criminal offending in Hong Kong are:

  • the Hong Kong Police Force;
  • the Commercial Crime Bureau;
  • the Cyber Security and Technology Crime Bureau and Organised Crime and Triad Bureau;
  • the JFIU is a joint operation of the Police and the Hong Kong Customs & Excise Department (anti-money laundering and terrorist financing); and
  • the Securities and Futures Commission (SFC) (insider dealing offences and market abuse).

These authorities, in conjunction with the Department of Justice, prosecute individuals and corporates suspected of committing an offence, and the Hong Kong courts decide the question of guilt. The burden of proving the commission of the offence by the defendant is on the prosecuting authority and the standard of proof is "beyond reasonable doubt".

Enforcement of a Judgment or Order

Garnishee order

Where a plaintiff has obtained a judgment in their favour for a specified sum (usually the amount received by the defendant in the course of the fraud), the defendant becomes a judgment debtor and the plaintiff can apply to court for a garnishee order. A garnishee order requires a person who owes the judgment debtor a debt to repay that debt directly to the judgment creditor. A typical garnishee order requires the judgment debtor's bank to pay the judgment debtor's debt directly to the judgment creditor.

The garnishee order is obtained in two stages. The first is an ex parte paper application. The judgment creditor files a draft garnishee order to show cause, supported by an affidavit explaining why the order should be granted. Once granted, a sealed copy must be served on first the garnishee bank and then the judgment debtor. The funds in the judgment debtor's account will be frozen as soon as the bank is aware of the garnishee order to show cause. Following a specified period of time (which gives the judgment debtor a final chance to object and apply to have the order set aside), there will be a short hearing at which, all going well, the court will make the garnishee order absolute. Once the garnishee order absolute is served on the bank (or other paying party), the bank should release the funds to the judgment creditor.

Charging order

A charging order is a charge on an interest in land or over securities. In deciding whether to make a charging order, the court considers the circumstances of the case as well as the personal circumstances of the debtor, and whether the creditor or the debtor would be unduly prejudiced by the making of the order.

A court would not make a charging order on an asset of considerable value in respect of a relatively small debt.

The courts have also held that a charging order should not be made when the court is aware of the fact that the debtor is, or is likely to turn out to be, insolvent, and an exercise of the court's discretion in making a charging order would give one creditor an advantage over others.

If the judgment debtor does not satisfy the judgment after the charging order has been made, the judgment creditor can enforce the charging order by selling the charged land or securities.

Writ of execution

A writ of execution directs a bailiff to seize goods, chattels and other property of the judgment debtor to satisfy the judgment debt. The judgment creditor has to issue a writ of execution of the type it requires (eg, a writ of fieri facias) to obtain the judgment debt, or a writ of possession, to obtain repossession of land, or a writ of delivery, for the delivery of goods. The bailiff executes writs of execution.

Examination order

An examination order is an order for cross-examination of the judgment debtor on oath in open court. Usually the Registrar (or their appointee) will carry out the cross-examination.

The judgment creditor can apply ex parte for an examination order, which, if obtained, should be served personally on the judgment debtor. 

Winding-up petition/bankruptcy

The most common ground to present a winding up petition (in the case of a debt unpaid by a company) or instigate bankruptcy proceedings against an individual is to show that the judgment debtor is insolvent. The best way to do that is to issue a statutory demand requiring payment of the undisputed debt within 21 days. If the judgment debtor fails to pay the debt within 21 days, the petition can be presented.

If the court grants the order, a liquidator or trustee in bankruptcy will be appointed and empowered to look into the assets and predicament of the judgment debtor.

Winding up and bankruptcy are class remedies, which benefit the whole body of creditors. Following the adjudication of its proof of debt by the liquidators, the petitioning creditor will rank pari passu with all other creditors of the same class and be paid a dividend from the assets of the company upon the winding up. 

Protection against self-incrimination is a fundamental tenet of the common law. In Hong Kong, the right is enshrined in the Hong Kong Bill of Rights Ordinance. When invoked, no adverse inference can be drawn from remaining silent. This is because it is unfair for a person to have the right to remain silent, only for their silence to be put against them at trial.

However, the right not to self-incriminate is abrogated in some specific circumstances. 

In 2012, the Hong Kong Court of Final Appeal held that a person who was not a suspect was not allowed to invoke their right to silence in the course of an investigation conducted under the POBO. Subject to a limited use order, the witness was required to provide the information and documentation requested.

In 2019, the courts clarified the position on self-incrimination in relation to Section 181 notices from the SFC (a Section 181 notice is a preliminary notice for obtaining trading information). The judgment of the court made it clear that claiming privilege against self-incrimination can amount to a reasonable excuse for non-compliance under Section 181. This is significant because, on average, the SFC issues around 8,000 of these letters of enquiry per year.

That said, the privilege will not usually apply where the documents requested by the SFC are "pre-existing materials [that] have existence independent of the will" of the person claiming the privilege. The privilege may only extend to "materials created in response to the investigation".

Privilege will not protect anything said or done to further a crime. 

If communications that would otherwise be protected by legal professional privilege are made to further fraud and if the party seeking the disclosure can establish a strong prima facie case of fraud, then the disclosing party cannot assert legal professional privilege. To trigger the exception, there has to be a definite charge of fraud or illegality. Fraud here is used in a relatively wide sense, encompassing general iniquity.

Therefore, legal professional privilege does not extend where, for example, a solicitor is consulted on how to carry out an illegal act. In an action against ex-employees for conspiracy to injure, breach of the duty of fidelity and breach of confidence, discovery was ordered over documents between the solicitors and the defendant clients relating to setting up companies. It was irrelevant whether or not the solicitor was aware of the conspiracy (Gamlen Chemical Co (UK) Ltd v Rochem Ltd (No 2) 1983 RPC 1). 

The courts are entitled to look at the document in question, to determine whether privilege should be upheld.

However, the courts are very reluctant to deprive a party of legal professional privilege on an interlocutory application. Each case is judged on its facts. The courts will strike a balance between legal professional privilege considerations and the gravity of the fraud charge.

It is worth also noting that privilege is not lost if the purpose of the document was to ask, or warn against, the results of contemplated acts (Butler v Board of Trade [1971] Ch 680).

The general objective of punitive or exemplary damages is to punish, deter and denunciate (Allan v Ng & Co (a firm) [2012] 2 HKLRD 160). It is not therefore possible to claim punitive or exemplary damages as a form of compensation.

There are three situations where punitive or exemplary damages may be awarded (Rookes v Barnard [1964] UKHL 1):

(a) oppressive, arbitrary or unconstitutional actions by the servants of government;

(b) where the defendant's conduct was "calculated" to make a profit for himself or herself;

(c) where expressly authorised by statute.

A case of fraud may fall within category (b) above, and therefore punitive or exemplary damages may be awarded.

It is important to note that exemplary damages are a remedy of last resort. Exemplary damages will be awarded if, but only if, the remedies available to the court are inadequate to punish and deter the defendant (Allan v Ng & Co (a firm)).

Awards of exemplary damages should in general be moderate (Allan v Ng & Co (a firm)).

As a matter of procedure, the plaintiff must specifically plead their claim for exemplary damages, together with the facts on which they rely (RHC Order 18 rule 8(3)).

Banking Secrecy

In Hong Kong, a bank owes a qualified duty of secrecy to its customer.

Common law duty

The leading case on banks' duty of secrecy is Tournier v National Provincial and Union Bank of England (1924) 1 KB 461, where Atkin LJ defined the extent of the duty as going beyond the balance in the account, extending at least to all transactions that go through the account, and any securities. He added that the duty extends to information obtained from other sources than the customer's account, if the information was obtained as a result of the relationship between banker and customer. The duty extends beyond the closure of the account.

The duty of confidence that a bank owes to its customer is not absolute but qualified. The qualifications can be classified as follows:

  • where disclosure is under compulsion by law;
  • where there is a duty to the public to disclose;
  • where the interests of the bank require disclosure; and
  • where the disclosure is made by the express or implied consent of the customer.

Official secrecy – Banking Ordinance (Cap 155)

Section 120 of the Banking Ordinance provides for the boundaries of a bank sharing customer information to regulators.

Section 120(5) provides that the duty of secrecy does not apply to certain circumstances, such as disclosure of information of criminal proceedings, disclosure to the ICAC and SFC, and disclosure for anti-money laundering and counter-terrorist financing purposes.

Code of Banking Practice

The Code of Banking Practice (the Code) is issued jointly by the Hong Kong Association of Banks (HKAB) and the Deposit Taking Companies Association (DTCA), and is endorsed by the Hong Kong Monetary Authority (HKMA). Authorised institutions must observe the Code in dealing with their customers. Failure to observe the Code could lead to disciplinary action by the HKMA.

The Code sets out certain requirements to increase the security of customer information. For example, the Code provides guidance on keeping customers' affairs private and confidential and electronic banking services.

Personal Data (Privacy) Ordinance (Cap 486)

Additionally, a bank is required to keep certain customer information private under the Personal Data (Privacy) Ordinance (Cap 486).

Seeking Evidence in Fraud Claims

Banker's record – Evidence Ordinance (Cap 8)

A court order is required to compel the production of a banker's record as evidence in court if the bank is not a party to the proceedings (Section 20(2), Evidence Ordinance).

On the application of any party to any proceedings, the court may order that the party has the right to inspect and take copies of any entries in a banker's record for any of the purposes of such proceedings (Section 21, Evidence Ordinance).

"Banker's record" includes: (i) any document or record used in the ordinary business of a bank; and (ii) any record so used that is capable of being reproduced in a legible form (Section 2, Evidence Ordinance).

Bankers Trust orders

A Bankers Trust order directs a bank to disclose certain information. The information disclosed are wide-ranging and the court may order disclosure of correspondence, cheques and banking records. A Bankers Trust order is usually made against banks or professional advisers who either hold the misappropriated funds or through whom those funds have passed. Following the two-step process set out in Asiya Asset Management (see 2.3 Obtaining Disclosure of Documents and Evidence from Third Parties), applications for Bankers Trust orders should be made on an inter partes basis whenever possible. 

Recently, the courts have made Bankers Trust orders against cryptocurrency exchanges as well (see, for example, Fetch.ai Ltd & Anor v Persons Unknown Category A & Ors [2021] EWHC 2254 (Comm)).

Applications for Bankers Trust orders can be made in aid of an interlocutory application for a Mareva or Anton Piller order. Similarly, Bankers Trust orders are sometimes granted where a plaintiff claims a proprietary interest in assets held by the defendant.

Applicants may be required to give an undertaking in damages, to pay the bank's expenses, and to use the documents only for the purpose of tracing.

Indictable offences

A bank can be compelled to disclose customer information by virtue of a disclosure notice under the Police Force Ordinance (Cap 232) (PFO). Section 67(1) of the PFO gives the Commissioner of the Police the power to order the disclosure, provided that the Commissioner has good reason to suspect that an indictable offence has been committed, and it is useful for the purpose of investigating such offence or apprehending the offender.

Organised and Serious Crimes Ordinance, anti-money laundering and anti-terrorism

A bank can also be compelled to disclose customer information under the Organised and Serious Crimes Ordinance (Cap 455) (OSCO).

Under Section 25A(1) of the OSCO, if a person (including therefore a banker) knows or suspects that property represents the proceeds of an indictable offence, they must disclose the evidence of that knowledge or suspicion, to an authorised officer.

In addition, the Anti-Money Laundering and Counter-Terrorist Financing (Financial Institutions) Ordinance (Cap 615) imposes statutory customer due diligence and record-keeping obligations for financial institutions, including banks. This impacts upon the banker's duty of confidentiality. For example, banks are required to identify transactions that are complex, unusually large in amount or of an unusual pattern and/or have no apparent economic or lawful purpose, by examining the background and purposes of those transactions and setting out its findings in writing (Section 5(1)(c) of Schedule 2).

Hong Kong law treats crypto-assets as property; see Yan Yu Ying v Leung Wing Hei [2021] HKCFI 3160. The position is the same under English law (AA v Persons Unknown [2019] EWHC 3556 (Comm)).

It is possible to obtain both proprietary and Mareva injunction relief in Hong Kong in relation to crypto-assets. In Yan Yu Ying v Leung Wing Hei, the plaintiff obtained a proprietary injunction to restrain the defendant from dealing with Bitcoin and assets up to the value of HKD328,363,760. The court granted the proprietary injunction, but refused to grant the Mareva injunction on the balance of fairness. However the court did not rule out the possibility of granting a Mareva injunction in relation to crypto-assets in a suitable case in the future.

The task of tracing cryptocurrencies can be straightforward because blockchain identifies cryptocurrency transactions with a transaction hash, which is a unique string of characters given to every transaction verified by and added to the blockchain. In addition, the senders and recipients of cryptocurrencies are identified by their wallet addresses.

However, problems with tracing cryptocurrencies can arise when fraudsters mix multiple sources of funds for large and random periods, and then redirect the currencies to their destination addresses. Defences of change of position and bona fide purchaser for value without notice of the fraud regularly arise.

It is possible to obtain NPOs against cryptocurrency exchanges based in Hong Kong. A cryptocurrency exchange served with an NPO can be compelled to provide information, including the source and destination of the subject cryptocurrencies, and customer information and IP addresses of the wallet operators. This information will assist a plaintiff to bring both personal and proprietary claims. Applying Fetch.ai Ltd & Anor v Persons Unknown Category A & Ors [2021] EWHC 2254 (Comm), the authors have obtained Bankers Trust orders and NPOs against cryptocurrency exchanges registered abroad, but operating in Hong Kong.

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Hong Kong SAR

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+852 3983 7766

www.hfw.com
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Law and Practice

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Holman Fenwick Willan (HFW) is recognised internationally as an industry leader advising on all aspects of aviation, commodities, construction, energy and resources, insurance and reinsurance, and shipping. The Hong Kong office has a stellar record in representing clients in all forms of disputes, both regionally and internationally. The fraud and insolvency practice provides a full-service onshore capability in Hong Kong. It has a long tradition of success acting for the victims of fraud, banks, local and international businesses and directors. The practice has particular expertise in dealing with trust matters and shareholder disputes in offshore financial jurisdictions. The type of fraud work undertaken includes multi-jurisdictional fraud claims; locating, securing and recovering the proceeds of fraud; obtaining Norwich Pharmacal orders and injunction orders of all kinds, including Mareva, proprietary, mandatory and anti-suit injunctions, stop orders and committal orders; and negotiating settlements with fraudsters – which is an art!

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