HONG KONG Law and Practice Contributed by: George Lamplough, Edward Beeley, Vanessa Cheng and Curtis Pak, Holman Fenwick Willan
In all ex parte applications, there is a duty to give full and frank disclosure of all material matters. 2.5 Criminal Redress Law enforcement and civil lawyers frequently work together to recover funds for victims of fraud. In cases of bank wire fraud, where a victim has been tricked into transferring funds into another bank account because of fraud, the victim should file a report with the Hong Kong police. The police will then usually contact the recipient bank to see if the funds are still in that account. If the fraud is reported promptly, the fraudster may not have had the opportunity to move the funds elsewhere, and so the funds may still be in the account. If the funds have been transferred out of the account of the first- level recipient, the police will often obtain a warrant ordering the recipient bank to disclose to the police the relevant bank records to identify the second-level recipient. A practice has evolved whereby the police recom - mend recipient banks to make a suspicious transac - tion report to the JFIU, following which the JFIU would issue a letter of no consent (LNC) to freeze the funds in the recipient’s account. The Court of Final Appeal has upheld the legality and constitutionality of the LNC regime ( Tam Sze Leung & Ors v Commissioner of Police [2024] HKCFA 8). In the meantime, the efficient use of Mareva injunc - tions is paramount, and victims of fraud would be wise to obtain urgent Mareva relief. Where a criminal prosecution is in progress, the defendant would usually seek to stay the civil pro - ceedings pending the outcome of the criminal pro - cess. A certificate of conviction is admissible as evi - dence in a civil action, so a successful prosecution will assist the plaintiff in establishing liability before the civil courts. 2.6 Judgment Without Trial Default Judgment A plaintiff may obtain judgment without a trial (“default judgment”) where a defendant has failed to give notice of their 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 mon - ies had and received), it is possible for plaintiffs to abandon their proprietary claim and bring themselves within the scope of RHC Order 13 Rules 1–4. 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 decla - ration, the courts retain 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 were denied. In cases concerning email frauds where the plaintiff asserts a proprietary claim, the courts have granted declaratory relief in default judgments to secure the plaintiff’s proprietary claim. 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 granted without a trial on the grounds that the defendant has no defence to the claim. The procedures for apply - ing for summary judgment are provided in RHC Order 14. Summary judgment is available for most actions begun by writ and, since 1 December 2021, claims alleging 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. Delay may be a reason for refusing summary judgment.
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