HONG KONG SAR, CHINA Law and Practice Contributed by: George Lamplough, Vanessa Cheng and Curtis Pak, Holman Fenwick Willan
a banker’s record as evidence in court (Section 20(2), EO). On the application of any party to any proceed - ings, 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 certain information. The information disclosed is wide-ranging and the court may order disclo - sure 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. Bankers Trust Orders can be sought 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 defend - ant. 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 purpose of tracing only. Indictable offences A bank can be compelled to disclose custom - er information by virtue of a disclosure notice under the Police Force Ordinance (Cap 232) (PFO). Section 67(1) of the PFO gives the Com - missioner 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 an offence or apprehending the offender. Organised and Serious Crimes Ordinance (Cap 455) (OSCO), anti-money laundering and anti-terrorism A bank can also be compelled to disclose cus - tomer information under the OSCO. Under Section 25A(1) of the OSCO, if a person (including, therefore, a banker) knows or sus - pects 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 Institu - tions) Ordinance (Cap 615) imposes statutory customer due diligence and record-keeping obli - gations on financial institutions, including banks. 7.3 Crypto-Assets 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 Antoni - us Samara v Stive Jean-Paul Dan [2019] HKCFI 2718). Norwich Pharmacal Orders It is possible to obtain NPOs against cryptocur - rency exchanges based in Hong Kong. A crypto - currency exchange served with an NPO can be compelled to provide information, including the source and destination of the cryptocurrencies,
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