HONG KONG SAR, CHINA Law and Practice Contributed by: George Lamplough, Vanessa Cheng and Curtis Pak, Holman Fenwick Willan
2.9 Compelling Witnesses to Give Evidence A witness in Hong Kong can be compelled to attend court to give evidence by a writ of sub - poena. A subpoena can be issued either to obtain oral evidence at trial (subpoena ad tes - tificandum) or to obtain documents (subpoena duces tecum). Since a subpoena is an order of the court, delib - erate 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. 3. Corporate Entities, Ultimate Beneficial Owners and Shareholders 3.1 Imposing Liability for Fraud on to a Corporate Entity 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 com - pany 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 a majority of shareholders is treated as the decision of the company for a specified purpose. In such a case, the knowl - edge of the board or a 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
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 defend - ant has no defence to the claim. The procedures for applying for summary judgment are provided in RHC Order 14. Summary judgment is avail - able 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. 2.7 Rules for Pleading Fraud It is well established that fraud or dishonesty must be distinctly alleged and sufficiently par - ticularised in pleadings. The pleadings must set out the primary facts that are relied upon to justi - fy any alleged inference of fraud or dishonesty. It is not open to the courts to infer dishonesty from facts that have not been pleaded. The courts have inherent jurisdiction to strike out allegations of fraud made without proper evidence. 2.8 Claims Against “Unknown” Fraudsters The Hong Kong courts have granted injunctive relief and judgments against persons unknown. In a number of unreported cases plaintiffs have obtained proprietary and Mareva injunctions against cryptocurrency wallets by identifying the defendants as “The Account Holders of Wallet Address [x]” .
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