(A)
Introduction
X
v. Y Company (DCMP 5633/2025, date of reasons for decision: 2 April 2026) [1] arose from an
alleged internet fraud. The Plaintiff commenced the action by originating
summons issued by on 13 October 2025 (“OS”) seeking various
heads of relief, including a Norwich Pharmacal order, a gagging order and an
order that no inspection of the court file be allowed except with leave of the
Court. [2]
Although
this appeared to be a routine proceeding, the Court identified seven procedural
irregularities that warrant practitioners’ attention: [3]
(1) Listing
the hearing in Chambers (not open to the public) without proper justification
and without following Practice Direction 25.1.
(2) Failing
to obtain interim anonymity orders and interim no‑inspection
orders before filing the OS, leaving the court file open to public
inspection for nearly three months.
(3) Seeking
broader relief in the notice of appointment (Private Hearing Order
and Anonymity Order) than in the OS, without amending the OS or filing evidence
of the defendant’s stance.
(4) Improper
approach to the interim gagging order: requesting the bank to withhold
information from account holders before any court order was made, instead of
following the correct three‑step ex parte procedure.
(5) Engaging
in extensive pre‑action correspondence with the bank, which negated urgency
or secrecy required for ex parte procedure.
(6) Exhibiting
nearly 300 pages of WhatsApp screenshots in an inefficient, costly and
court‑unfriendly manner, instead of using exported chat files and electronic
exhibits.
(7) Failing to exhibit draft
documents exchanged with the defendant, leaving the Court unable to
understand the parties’ comments and consensus without seeking clarification.
Most
importantly, this is the third case in which the District Court has
substantively considered whether it has jurisdiction to grant a Norwich
Pharmacal order. After a detailed analysis of the statutory provisions, historical context and relevant authorities, and in the absence of submissions, the Court left the question open. Therefore, whether the District Court has jurisdiction to grant
“freestanding” Norwich Pharmacal relief remains unsettled.
(B) Facts
The Fraud
In mid-2024, an unknown
person the Plaintiff to a WhatsApp group. A group member induced the Plaintiff
to download a purported mobile “investment application” and register an “investment
account” for investing in Mainland stocks. [4] She was required to transfer funds
into the “investment account” before she could trade through the “investment
application”. [5]
In September 2024,
acting on instructions from customer service officers, she transferred funds
from her local bank account to four accounts with the Defendant in the names of
four different persons (the “1st Tier Recipients”). A small
withdrawal from the “investment account” was initially permitted, but a
subsequent larger request was refused. Therefore, the Plaintiff lost all her
savings (the “Defrauded Sum”). [6]
Pre-action Stage
(1) 22 April 2025: The
Plaintiff’s solicitors requested the Defendant to disclose correspondence
addresses, HKID card numbers, and current balance figures of the four account
holders. [7]
(2) 24
April 2025: The Defendant declined on grounds of customer confidentiality and
indicated that a court order would be required. [8]
(3) 28 July 2025: The
Plaintiff’s solicitors notified the Defendant of intention to seek a Norwich
Pharmacal order and requested the Defendant to withhold informing the account
holders, reserving the right to seek a gagging order. [9]
(4) 29 September 2025: The
Defendant maintained a neutral stance and indicated that it would not contest
the action. [10]
The Proceedings
(1) 13 October 2025: The
Plaintiff filed an OS seeking: (a) Norwich Pharmacal order for personal
particulars, account documents and transaction records; (b) leave to use
information for investigation and/or commencing proceedings; (c) gagging order;
(d) no inspection of court file order; (e) costs on indemnity basis. [11] On the
same day, she took out an ex parte summons for an interim
gagging order, but later abandoned it. [12]
(2) 17
October 2025: The Defendant acknowledged service, stating no intention to
contest. [13]
(3) 24 October 2025: The
Plaintiff filed the Notice of appointment, seeking additional relief not in the
OS: (i) Private Hearing Order (chambers not open to public); (ii) Anonymity
Order. [14]
(C) The Procedural Features
Warranting Attention
The
Court identified the following unusual procedural features:
(1) Listing
of hearing in Chambers (not open to the public) without justification
Under
Order 28, rule 3A, an originating summons must be heard in open court unless
the Court otherwise directs. Paragraph 2(a) of Practice Direction 5.8 provides that
the first hearing is to be heard “in chambers”. [15] Paragraph 2 of Practice
Direction 25.1 provides that chambers hearings shall be held in public except
in specified instances. [16]
An action for a Norwich
Pharmacal order and ancillary gagging order falls within none of the
exceptions. As such, the default position is that the first hearing of such
action shall be listed for hearing in Chambers (open to the public). [17]
In this case, the Plaintiff
listed the hearing as “Chambers (not open to public)” without following the
required procedure under paragraph 7 of Practice Direction 25.1 (applying in
writing at least 2 clear days before hearing with grounds). As such, the
hearing was converted to open court and the Private Hearing Order was abandoned. [18]
(2) Failure
to Obtain Interim Anonymity and No-Inspection Orders
In
this case, the Plaintiff has never sought any interim order to protect the
anonymity of the parties. The OS was filed on 13 October 2025 and was open to
public inspection for nearly three months. The Daily Cause List published
before the hearing would have disclosed the parties’ names to the public. [19]
On the day before the
hearing, the Court exercised the implied jurisdiction to make an
interim anonymity order so that the parties’ names would not be shown in the
Daily Cause List pending the first hearing of the notice of appointment. [20]
(3) Notice
of Appointment Sought Relief Beyond the Originating Summons
Under Order 28, rule 3(3), a notice of
appointment must specify the orders or directions the party serving the notice
intends to seek at the hearing. [21] Where a plaintiff seeks orders beyond the scope
of the originating summons, the proper procedure is to amend under O 20, rules
5 and 7 and to file evidence of the defendant’s stance on the proposed
amendments. [22]
In the present case, the
Notice of Appointment sought a Private Hearing Order and Anonymity Order which were
not in the OS. No amendment application was made and no evidence was filed as
to the Defendant’s position. [23] The Court accepted, based on the letter dated 26
September 2025, that the Defendant remained neutral, so amendment was not
required on this occasion. [24]
(4)
Failure
to Exhibit Draft Correspondence
Parties
should exhibit draft documents exchanged in correspondence so that the Court
can properly understand the parties’ comments and any consensus reached, in
accordance with Practice Direction 10.1. A party cannot give factual evidence
through bundle descriptions or the way a bundle is prepared. [25]
In
this case, the draft documents enclosed with letters dated 28 July, 5, 19, 26
September 2025 were omitted from exhibited copies. As such, the Court
could not understand the Defendant’s comments on the drafts. [26] The Plaintiff’s
solicitors later explained the Draft Order was the final draft sent on 26
September 2025 and the OS had wrongly used a previous draft. [27]
(5)
Improper
Approach to Interim Gagging Order
In Asiya Asset Management (Cayman) Ltd v
Dipper Trading Co Ltd [2019] 3 HKC 145, the Court set out the correct
three-step procedure for gagging orders: [28]
(a) The plaintiff seeks on
an ex parte without notice basis a gagging order against the bank
pending the hearing of the Norwich Pharmacal discovery against the bank
either on an inter partes basis or at the very least on an ex parte
basis but with notice. The notice period to be given should normally be sufficiently long so that the bank
can meaningfully make submissions, if it thinks appropriate to do so.
(b) At the hearing of the Norwich
Pharmacal discovery application against the bank, the Court will then have the benefit of the submissions of the bank,
if any, while the plaintiff on the other hand will be protected by the gagging
order until the conclusion of such proceedings.
(c) The Court can in an appropriate case grant a further brief period for
the gagging order to continue, to allow the plaintiff to make such applications
as it sees fit to protect its interests.
In
this case, the Plaintiff requested the Defendant to withhold information from
the account holders before any order was made, placing the Defendant in a
difficult position vis‑à‑vis its customer duties. [29]
(6)
Pre-action
Correspondence Negated Urgency/Secrecy for ex parte procedure
In A1
v R1 [2021] HKCFI 650, the applicants sought ex parte relief on
grounds of urgency and secrecy, but provided draft documents to the banks five
days before filing. The Court held that this conduct showed the application was
not urgent and secrecy had been given up. [30] A party who engages in pre‑action
correspondence with the banks cannot properly seek ex parte relief, as such
conduct lnegates the usual foundations of urgency and secrecy. [31]
Similarly, in this case, the Plaintiff engaged in extensive pre‑action correspondence over
several months, which negated any basis for ex parte relief.
(7)
Improper
Use of WhatsApp Screenshots as Evidence
In
this case, nearly 300 pages of colour-printed WhatsApp
screenshots were exhibited, creating multiple difficulties: [32]
(a) The messages bear no specific dates, are
selectively captured from a rolling screen in a manner suggesting continuity,
and often compel legal representatives to make impermissible factual assertions
as to how they should be read. The Court must infer the dates of each message
from context.
(b) The top and bottom of each page inevitably repeat
content from adjoining pages, while large portions are occupied by blank spaces
or non‑textual graphics that rarely bear relevance to the issues before the
Court.
(c) Pictures attached to WhatsApp messages cannot be
shown clearly in screenshots, as they are invariably reduced in size. In the
present case, the screenshots were printed in colour and enlarged, seemingly only
to render the attached pictures legible.
(d) Screenshots cannot convey the content of
documents attached to WhatsApp messages, save perhaps an incomplete file name
appearing in the text.
(e) The manual production of screenshots consumes
excessive time, unnecessarily expands the volume of papers the Court must
review, and increases the legal costs of the proceedings.
Recommended practice for adducing WhatsApp messages (subject to technological
developments) should be as follows: [33]
(a) Parties are expected to prepare exported chats
and insofar as necessary and relevant together with media. Where only the
textual messages are relevant, the chat .txt
file (or an equivalent electronic format) should be exhibited both in printed
form and electronically, the latter enabling keyword search.
(b) For relevant attachments, a party should exhibit
both the electronic files (with the original file names shown in the chat .txt file) and also its printed version (with clear indication of the
aforesaid file name).
(c) The requirement to exhibit printed copies is
always subject to the circumstances of individual cases.
(d) Unless compliance is impossible, for example, due
to technical reasons, the above practice should be followed. Any departure must
be justified. It is difficult to conceive that screenshots themselves could
convey more relevant information than an exhibit prepared in accordance with
the above, save in the rarest and most exceptional circumstances.
(D) Decision
Relief
The
Court granted the following relief:
(a) Norwich
Pharmacal Order
The Court held that the
first two requirements set out in A1 v R1 [2021] HKCFI 650 were
clearly satisfied: (1) there was cogent and compelling evidence of
internet fraud; (2) the order sought would likely reap benefit for P and enable
P to at least assert her interests in one of the four accounts. [34] The third
requirement (that the discovery sought must not be unduly wide) was satisfied
after the Plaintiff agreed to replace “including” with “namely” to specify the
relevant particulars. [35]
(b) Gagging
Order
The Court granted the gagging order on two grounds: (1) the Defendant maintained its neutrality in this action and there is no evidence that the 1st
Tier Recipients ever gave any instructions regarding the operation of their
accounts; (2) given the nature of the fraud practised upon the Plaintiff, real
prejudice would be suffered by
the Plaintiff if an order was refused. [36] The Court added that, if a party seeks the bank’s view on a proposed gagging order, the
proposed date of expiry should be stated clearly. [37]
(c) Anonymity
Order
The Court held that having regard to all the circumstances and for the purpose of maintaining
consistency with other orders granted, the Court held that the Anonymity Order was
justified. [38]
(d) No Inspection of Court File Order
The Court granted this order to maintain consistency with other orders
made. [39]
Jurisdictional question
left open
The District Court has substantively considered this jurisdictional question on two prior occasions: (1) Kwong Sin Yee Florence v Cathay Pacific Airways Ltd [2025] HKDC 1251; and (2) Chan Chun Hei Ryan v Hang Seng Bank Ltd [2026] HKDC 91. [40]
In this case, the Court addressed
whether the District Court has jurisdiction to grant “freestanding” Norwich
Pharmacal relief where there is no existing action, but only an
asserted intention to commence proceedings against the wrongdoers.
In the absence of submissions, the Court left the above question open, subject to the following observations:
(1) Section 48 of the
District Court Ordinance (Cap. 336) (“DCO”) confers power to grant relief
“ancillary to” or “in aid of” an existing action, and does not obviously authorize freestanding pre‑action relief. . [41]
(2) Section 52 of the DCO is
an unlikely source of jurisdiction. Describing a Norwich Pharmacal order as an
“injunction” would stretch the term too far, and an originating summons for
disclosure is not a matter “affecting” property. [42]
(3) The
District Court does not possess inherent jurisdiction for granting freestanding relief in the strict sense. Its
powers are statutory. The proper question is whether the power exists by statutory
implication, namely, whether it is “reasonably required” for the effective
exercise of expressly conferred jurisdiction. [43]
Historically, the
District Court’s predecessor never had equitable jurisdiction and the bill of
discovery belonged exclusively to the Court of Chancery. [44] Even after equity
jurisdiction was conferred on English County Courts in 1865, it was settled
that there was no jurisdiction to commence an action for discovery only. [45] Although the Court of Final Appeal in Sir Elly Kadoorie & Sons Ltd
v Bradley [2026] HKCFA 2 confirmed that an intention to bring legal
proceedings is not a pre‑condition for Norwich
Pharmacal relief, that does not automatically answer the
jurisdictional question for the District Court. [46]
The Court noted an
apparent incongruity: although an intention to bring proceedings is not
necessary for Norwich Pharmacal relief, it would nevertheless
be treated as sufficient to confer jurisdiction on the District Court, even
though its realization depends entirely on whether the disclosed information
proves useful. [47]
(E) Key Takeaways
This case provides valuable guidance on the proper procedures for obtaining a Norwich Pharmacal order, an anonymity order, a no‑inspection order and a gagging order, as well as the recommended practice for adducing WhatsApp messages.
Notably, whether the
District Court has jurisdiction to grant freestanding Norwich Pharmacal relief
remain unsettled. To play safe, the applicant can commence in the Court of
First Instance, which clearly has jurisdiction. If proceedings must be
commenced in the District Court, the applicant can seek a ruling on the
jurisdictional question at the earliest opportunity, or frame the application
as ancillary to an existing or imminent action within the District
Court’s express statutory jurisdiction, rather than as a truly “freestanding”
application.
https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2025/DCMP005633_2025.docx[2]X v. Y Company (DCMP 5633/2025, date of reasons for decision: 2 April 2026), §1
[3] Ibid, §4
[4] Ibid, §6
[5] Ibid, §7
[6] Ibid, §8
[7] Ibid, §9
[8] Ibid
[9] X v. Y Company (DCMP 5633/2025, date of reasons for decision: 2 April 2026), §11[10] Ibid, §15
[11] Ibid, §17
[12] Ibid, §20-§21
[13] Ibid
[14] X v. Y Company (DCMP 5633/2025, date of reasons for decision: 2 April 2026), §22
[15] Ibid, §29
[16] Ibid, §30
[17] Ibid, §32
[18] Ibid, §37
[19] Ibid, §42
[20] Ibid, §43
[21] Ibid, §45
[22] Ibid, §47
[23] Ibid, §48
[24] Ibid, §49
[25] Ibid, §50
[26] Ibid, §16
[27] Ibid, §28
[28] Ibid, §51
[29] Ibid, §53
[30] Ibid, §54
[31] Ibid, §55
[32] Ibid, §57
[33] Ibid, §58
[34] Ibid, §64
[35] Ibid, §65
[36] Ibid, §67
[37] Ibid, §68
[38] Ibid, §70
[39] Ibid, §74
[40] Ibid, §75-§76
[41] Ibid, §77
[42] Ibid, §81
[43] Ibid, §82
[44] Ibid, §83
[45] Ibid, §90
[46] Ibid, §92
[47] Ibid, §94