HONG KONG Law and Practice Contributed by: George Lamplough, Edward Beeley, Vanessa Cheng and Curtis Pak, Holman Fenwick Willan
• disclosure of information during criminal proceed - ings; • 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 sets out certain require - ments in relation to the security of customer infor - mation. For example, the Code provides guidance on keeping customers’ affairs private and confidential and electronic banking services. Personal Data (Privacy) Ordinance (Cap 486) (PDPO) Additionally, a bank is required to keep certain cus - tomer information private under the PDPO. Obtaining Evidence in Fraud Claims Banker’s record – Evidence Ordinance (Cap 8) (EO) If the bank is not a party to the proceedings, a court order is required to compel production of a banker’s record as evidence in court (Section 20 (2), EO). 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, EO). Bankers Trust Orders A Bankers Trust Order directs a bank to disclose cer - tain information. The information disclosed is wide- ranging, and the court may order disclosure of corre - spondence, cheques and banking records. A Bankers Trust Order is usually made against banks or profes - sional advisers who either hold the misappropriated funds or through whom those funds have passed. Bankers Trust Orders can be sought in aid of an inter - locutory 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. As a condition of a Bankers Trust Order being granted, the applicant may be required to:
• give an undertaking in damages; • pay the bank’s expenses; and • agree to use the documents disclosed for the pur -
pose of tracing only. Indictable offences
A bank can be compelled to disclose customer infor - mation 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 use - ful for the purpose of investigating such an offence or apprehending the offender. OSCO (Cap 455), anti-money laundering and anti- terrorism A bank can also be compelled to disclose customer information under the OSCO. Under Section 25A(1) of the OSCO, if a person (including, therefore, a banker) knows or suspects that property represents the pro - ceeds 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 on financial institu - Hong Kong law treats crypto-assets as property: Re Gatecoin [2023] HKCFI 914. The position is the same under English law. Injunctions It is possible to obtain both proprietary and Mareva injunction relief in Hong Kong in relation to crypto- assets ( Yan Yu Ying v Leung Wing Hei [2021] HKCFI 3160 and Nico Constantijn Antonius Samara v Stive Jean-Paul Dan [2019] HKCFI 2718). However, injunctive relief should usually be sought against the fraudster’s crypto account rather than against the “omnibus” wallet of the crypto exchange ( Wang Weiqing v Zhuo Yihao & Others ). tions, including banks. 7.3 Crypto-Assets
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