High Court provides guidance on enforcing proprietary rights in identity fraud cases

Ernest Ng and Fergus Tam, instructed by Gallant, acted for the plaintiff in Amidas Hong Kong Limited v Che Si Limited [2025] HKCFI 1128 in applying for a rolled-up account and inquiry in a default judgment, in a case that confronts the unsettled area of enforcement of proprietary rights by vesting orders, execution orders, and garnishee orders.

In a 44-page judgment on 25 March 2025, Queeny Au-Yeung J, despite conflicting decisions, opted for the traditional method of garnishee orders.  The judgment contains detailed reasons as to the correct approach to seek a default judgment, especially where tracing and calculation as to the apportionment of interest is needed, and as to the availability of garnishee orders to enforce judgments involving proprietary rights.

In the judgment, the Judge declared that funds in defendant’s account belongs to the plaintiff and that it is held by the defendant on constructive trust.  The Judge also accepted “rolling up” the account and inquiry as part of the default judgment application without even the need to rely on any affirmation.  The Judge also apportioned existing and future interest.

Turning to enforcement, the Judge recognised the effort of the plaintiff (and its legal team) to seek to “clarify the conflicting positions taken by different judges”:

• Garnishee orders: The Judge preferred this as viable for enforcement of judgments involving proprietary rights. The Judge particularly observed that the costs for a garnishee order are “much lower” than a vesting order. However, the Judge held that a garnishee order can only be taken out after a default judgment is pronounced or handed down.
• Vesting orders: The Judge considered the previous conflicting authorities and eventually held that s.52(1)(e) of the Trustee Ordinance does not apply to “category 2” constructive trustees.
• Execution Order under s. 25A of the High Court Ordinance (Cap. 4): The Judge declined to grant one on the basis that there is no pre-existing obligation on the defendant to execute any document to transfer the sum to the plaintiff.

This judgment, albeit non-binding on future cases, is the first published decision involving a consideration of all of vesting orders, execution orders, and garnishee orders.

It will be an invaluable reference for more complicated asset recovery cases. As the Judge held at §4, “I agree with counsel that engagement of the questions raised above, and the correct approach, may well have implications for future cases with more complicated facts.”

For Ernest’s full profile, see here.

For Fergus’ full profile, see here.

The judgment of Queeny Au-Yeung J [2025] HKCFI 1128 can be found here.