|
HCA 1631/2017
[2019] HKCFI 85
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 1631 OF 2017
________________________
|
BETWEEN
|
| |
SERIDOM SERVICIOS INTEGRADOS IDOM S.A.U. |
Plaintiff |
| and |
| HENG WEN TRADE CO., LIMITED (桓文貿易有限公司) |
1st Defendant |
| HONG KONG A ER TAI LIMITED(香港阿爾泰有限公司) |
2nd Defendant |
| HONG KONG CHUANG AND YING TECHNOLOGY CO., LIMITED (香港創贏科技有限公司) |
3rd Defendant |
HONG KONG YOU AN KAI TRADING CO. LIMITED
(香港優安凱貿易有限公司) |
4th Defendant |
| HK FRX TRADE LIMITED (香港褔瑞祥貿易有限公司) |
5th Defendant |
HONG KONG PENG TONG TRADING LIMITED
(香港鵬通貿易有限公司) |
6th Defendant |
HK HONGFA INTERNATIONAL TRADING LIMITED
(香港宏發國際商貿有限公司) |
7th Defendant |
HONG KONG JOIN STAR ELECTRONICS INTERNATIONAL LIMITED
(香港俊星電子國際有限公司) |
8th Defendant |
XK TRADING DEVELOPMENT LIMITED
(鑫孔貿易發展有限公司) |
9th Defendant |
| SMART SOURCE ELECTRONICS INTERNATIONAL LIMITED (俊源電子國際有限公司) |
10th Defendant |
| SOARING TECHNOLOGY CO., LIMITED |
11th Defendant |
ZHENGXING ELECTRONIC TRADING LIMITED
(正興電子貿易有限公司) |
12th Defendant |
EXPO (HONG KONG) TRADING LIMITED
(世博(香港)貿易有限公司) |
13th Defendant |
| LBW TRADING LIMITED (蘭博偉貿易有限公司) |
14th Defendant |
HING FAI CONSTRUCTION COMPANY LIMITED
(慶輝工程有限公司) |
15th Defendant |
MUQING HK TRADING LIMITED
(慕清香港貿易有限公司) |
16th Defendant |
HK XU KUN SEN TRADING LIMITED
(香港旭堃森貿易有限公司) |
17th Defendant |
HONGKONG BUY RUI TRADING LIMITED
(香港佰瑞貿易有限公司) |
18th Defendant |
CHENGTONGXIANG TRADING CO., LIMITED
(成通祥貿易有限公司) |
19th Defendant |
ONHOY INT'L TRADING LIMITED
(安凱國際貿易有限公司) |
20th Defendant |
JIE FU (HONG KONG) TRADING LIMITED
(捷孚(香港)貿易有限公司) |
21st Defendant |
________________________
| Before: |
Hon Marlene Ng J in Chambers |
| Date of Hearing: |
30 August 2018 |
| Date of Handing Down Decision: |
21 January 2019 |
________________
DECISION
________________
I. INTRODUCTION
1. The plaintiff (“P”) was a Spanish company incorporated on 3 October 1995 with headquarters in Bilbao, Spain. It had 40 offices around the world with over 3,000 employees, and projects in 125 countries that offered professional services in consulting, engineering and architecture. According to its 2016 audited accounts and audited consolidated accounts of the IDOM SAU group, P’s volume of activity was at €300,000,000.00 in the 2016 financial year.
2. The 1st defendant (“D1”) was a Hong Kong company incorporated on 2 June 2017 with registered address in Wanchai, Hong Kong. Its sole director/shareholder Li Guicang held a Chinese identity card and an address in Ningxia, Mainland China.
3. The 2nd and 3rd defendants (“D2” and “D3”) were Hong Kong companies incorporated on 15 September 2016 with same registered address in Mongkok, Kowloon. The sole director/shareholder of each of D2 and D3 was respectively Wang Xuemei and Ma Jingui who held Chinese identity cards and same address in Ningxia, Mainland China.
4. The 4th defendant (“D4”) was a Hong Kong company incorporated on 4 July 2016 with the same registered address as D2/D3. Its sole director/shareholder was Tian Fucheng who held a Chinese identity card and an address in Ningxia, Mainland China.
5. The 8th defendant (“D8”) was a Hong Kong company incorporated on 4 January 2010 with registered address in Tsimshatsui, Kowloon and with SBS Nominee Limited as its company secretary having an address in North Point, Hong Kong. D8 had a share capital of 500,000 ordinary shares of HK$1.00/share that were paid up or regarded as paid up. D8’s 2 directors/shareholders Zhong Yohua (450,000 shares) and Huang Wenli (50,000 shares) both held Chinese identity cards and addresses at Room 18C, Building No 5, Donjun Baishida Garden, Luohu Distrct, Shenzhen, Mainland China and Room 21B, Unit 3, Building No 2, Lehu Baisha Garden, Luohu District, Shenzhen, Mainland China respectively.
6. The 10th defendant (“D10”) was a Hong Kong company incorporated on 19 April 2010 with same registered address as D8 in Tsimshatsui, Kowloon. D10 had a share capital of 200,000 ordinary shares of HK$1.00/each. Its 2 directors/shareholders Zeng Jiankai (110,000 shares) and Chen Yixin (90,000 shares) held Chinese identity cards and different addresses in Shenzhen, Mainland China respectively.
II. P’S CASE
7. On 21 January 2016, P entered into a contract with an Israeli company regarding the construction/operation of a natural gas and diesel oil fired cogeneration electricity production facility to be located in Hadera, Israel (“Project”). P was to design, engineer, procure, supply, construct, install, commission, start up, test and deliver the facility to its customer. P engaged a Korean company BHI Co, Ltd (“BHI”) to provide some services for the Project pursuant to a contract between them dated 18 March 2016 (“BHI Contract”) for which P would make payments to BHI in tranches. The key contact person at BHI whom P dealt with on the BHI Contract was Wooram Lee (BHI’s Acting Manager of the Global Marketing Group located in Korea, “Lee”), and Ander Rodriguez Gil (“Rodriguez”) was P’s representative located in Spain who liaised with Lee in relation to P’s payments to BHI pursuant to the BHI Contract. Lee/Rodriguez communications were mostly by email, but some were via telephone calls.
8. P claimed to be a victim of fraudulent misrepresentations and/or deceit which led it to pay US$2,404,218.05 (“Net Sum”) to a bank account in D2’s name with Hang Seng Bank Limited (“HSB”) in Hong Kong (“D2’s Account”):
|
(a) |
on 15 May 2017, the real Lee sent by email 2 invoices dated 10 May 2017 for US$1,210,669.00 each (in the total sum of US$2,421,338.00) to Rodriguez for the 6th/7th milestone payments under the BHI Contract; |
|
(b) |
on 16 May 2017, Rodriguez replied to the real Lee by email stating the payment dates of the 2 invoices should be corrected to 10 June 2017, so the real Lee sent to Rodriguez 2 revised invoices with the dates changed; |
|
(c) |
on 17 May 2017, a person impersonating Lee (“Fraudster”) with email address just slightly different to that of the real Lee intercepted and responded to the email chain between Rodriguez and the real Lee (“1st Email”) by (i) stating to Rodriguez that BHI’s bank account was undergoing mid-year auditing process so payment could not be received into it, and (ii) attaching 2 invoices that directed P to make 2 payments of US$1,210,669.00 each to a HSB account in Hong Kong in the name of D1 (“D1’s Account”) and a letter titled “Updated new payment instruction” and dated 17 May 2017 purportedly signed on behalf of BHI and stamped with BHI’s company chop; |
|
(d) |
on 9 June 2017 and in reliance on such new payment instructions in the 1st Email and its attachments, P remitted US$2,421,338.00 to D1’s Account, but gave the “account name” as “BHI CO LTD” so such remittance was unsuccessful; |
|
(e) |
on 12 June 2017, the Fraudster sent email to Rodriguez (“2nd Email”) (i) stating that payment could not be received because D1’s Account was also undergoing mid-year audit process, and (ii) providing 2 revised invoices that directed P to make 2 payments of US$1,210,669.00 each to D2’s Account and a letter titled “Revised updated new payment instruction” and dated 12 June 2017 purportedly signed on behalf of BHI and stamped with BHI’s company chop; |
|
(f) |
meanwhile on 12 June 2017 Rodriguez informed the Fraudster by email of the payment in (d) above to which the Fraudster responded by resending the above revised payment instructions, and on 13 June 2017 Rodriguez emailed confirmation of cancellation of the payment in (d) above which was in any event unsuccessful; |
|
(g) |
on 15 June 2017, Rodriguez attended conference call with Lee, but for reasons unknown to P it appeared the Fraudster was aware of such call and sent a follow-up email attaching a letter titled “Revised updated new payment instruction” and dated 12 June 2017 and a payment instruction for P to make payment to D2’s Account; |
|
(h) |
on 16 June 2017, the Fraudster sent a letter purportedly issued by BHI relating to the progress of the Project as per Rodriguez’ request during the conference call; |
|
(i) |
on 21 June 2017 and in reliance on such new payment instructions in the 2nd Email and its attachments, P paid US$2,421,166.21 (“Sum”) into D2’s Account (“Primary Transfer”) with SWIFT message by Rodriguez to the Fraudster, but the amount received in D2’s Account after deducting bank charge of US$16,948.16 was US$2,404,218.05 (ie the Net Sum); |
|
(j) |
on 27-28 June 2017, the Fraudster sent 2 emails to Rodriguez stating they could not receive P’s payment, asking P to follow up with the bank, and enclosing 2 revised invoices directing P to pay the 6th/7th milestone payments to a Cambodian bank account; |
|
(k) |
on 29 June 2017, (i) the real Lee sent email to Rodriguez to follow up on the payment status of the 6th/7th milestone payments with attached email not from the real Rodriguez but from an email address just slightly different from P’s official email address for Rodriguez, (ii) Rodriguez replied to the Fraudster’s purported email address for Lee, and (iii) the Fraudster sent email to Rodriguez requesting P to make payment; |
|
(l) |
P started to investigate the matter, which led to discovery of the difference between the email address of the real Lee and that of the Fraudster thereby uncovering the fraud, but at the time of receiving the 1st/2nd Emails Rodriguez was unaware they were sent by the Fraudster from an email address largely identical to that of the real Lee; |
|
(m) |
on 29 June 2017, P reported the matter to the Spanish police; |
|
(n) |
|
