{"id":"court_ctb_1409_6","court":"CTB","case_no":"22-50073","doc_number":1409,"sub_number":6,"doc_type":"ORDER","filed_date":"2023-01-30","title":"Exhibit 6 F.n.C. Co. Ltd and Others","summary_zh":"裁判文书附件（香港判决） —— Ho Wan Kwok 破产案（郭文贵 / Guo Wengui / Miles Guo），CTB 22-50073 ECF #1409-6（2023-01-30立案）。该文件为先例判决附件，系香港上诉法庭1984年《F.n.C. Co. Ltd 诉 The Chase Manhattan Bank, N.A.》案判决，裁定在香港营业的银行对客户负有受香港法律管辖的默示保密义务，美国法院命令不能推翻该义务，从而驳回上诉并维持禁止向美国国税局提供香港账户记录的禁令。","summary_en":"Exhibit (Hong Kong Court Judgment) — In re Ho Wan Kwok (Miles Guo / Guo Wengui), CTB 22-50073 ECF #1409-6 (filed 2023-01-30). This document is an exhibit containing the Hong Kong Court of Appeal judgment in F.n.C. Co. Ltd and Others v. The Chase Manhattan Bank, N.A. (1984), holding that banks carrying on business in Hong Kong owe an implied duty of confidentiality governed by Hong Kong law that cannot be overridden by foreign U.S. court orders, thereby upholding an injunction against disclosing Hong Kong account records.","body_en":"# Exhibit 6\n\n# F.n.C. Co. Ltd and Others\n\nPlaintiffs (Respondents)\n\n## AND\n\n#### The Chase Manhattan Bank, N.A.\n\nDefendant (Appellant)\n\n(Court of Appeal) (Civil Appeal Nos. 65 and 131 of 1984)\n\nSir Alan Huggins, V.-P., Yang and Silke, JJ.A. 24th·27th September and 17th October 1984.\n\nSir Alan Huggins, V.-P., Yang and Silke, JJ.A. 24th·27th September and 17th October 1984.\n\nE\n\nD\n\nCommercial and business law-banking-obligation of secrecy-injunction to prevent disclosure--whether obligation applies to Hong Kong branch of foreign bank-whether obligation subject to territorial limits-relationship between obligation and disclosures required in ordinary course of business between foreign branch and head office.\n\nCourts practice and procedure-s-whether order of foreign court has extra-territorial effect in Hong Kong-principles of comity applicable.\n\nConflict of laws-principles of judicial comity applicable to resolve conflict of jurisdiction between Hong Kong court and foreign court.\n\nG\n\nThe defendant Bank (the \"Bank\") has its head office in the U.S.A. and local branches in Hong Kong. The plaintiffs were two Hong Kong companies and a Panama company. Each of them held one or more accounts with the Bank in Hong Kong.\n\nH ., The United States Internal Revenue Service wanted to inspect the Hong Kong bank accounts of the plaintiffs in connection with an investigation into other U.S. taxpayers. The I.R.S. served notice on the Bank's U.S. headquarters and obtained court orders for production \\_ \\_ 4 • (Court of Appeal) (Civil Appeal Nos. 65 and 131 of 1984)\n\nD\n\nCommercial and business law-banking-obligation of secrecy-injunction to prevent disclosure-s-whether obligation applies to Hong Kong branch of foreign bank-whether obligation subject to territorial limits-relationship between obligation and disclosures\n\n~. .. ... .. .\n\n17\n\nHeld:\n\n4.\n\nforeign law.\n\nbecause of a financial obligation.\n\n*s.*\n\n6.\n\n- 1. The appeals would be dismissed. The interim injunction would not be discharged. The interest in preserving the confidence between the Bank and its customers was not outweighed by other interests to which the' law attaches importance.\n- 2. The contracts between the plaintiffs and the Bank were governed by Hong Kong law. The court was concerned here not with the relationship between a foreign bank operating in Hong Kong and its customer, but with the relationship between a bank registered in Hong Kong and a customer in Hong Kong, their relationship being governed by Hong Kong law. I\n- 3. There was an implied term imposing an obligation of secrecy upon the Bank, whereby the Bank should not divulge to third persons either the state of the customer's account or any of his transactions with the bank or any information relating to the customer acquired through the keeping of his account unless (1) the disclosure was under compulsion of law, (2) there was a public duty to disclose, (3) the interests of the bank required disclosure or (4) disclosure was made by the express or implied consent of the customer. *(Tournier* v. *National Provincial and Union Bank of England* [1924]1 KB 461 applied.) ( [\n- 4. The first exception applied only to Hong Kong law and did not include a foreign law.\n\nE\n\nI\n\nE\n\n- *s.* The third exception meant only the interests of ordinary banking practice, such as when it is necessary to sue upon an overdraft or matters of that kind, and not to the case where it would be in the interests of the Bank to disclose because of a rmancial obligation.\n- 6. Under the laws of Hong Kong all the banks carrying on their banking business in Hong Kong owe the same obligations to their customers irrespective of where their head officeshappen to be. F\n- 7. All persons opening accounts with banks in Hong Kong, whether local or foreign banks, are entitled to look to the Hong Kong courts to enforce any obligation of secrecy which, by the law of Hong Kong, is implied by virtue of the relationship of customer and banker. G\n- 8. The Hong Kong branch of the Bank should for present purposes be considered as a different entity separate from the head office in New York. (R. v. *Grossman* (1981)73 Cr App R 302 followed.)\n- 9. Although the orders of the U.S. courts were in fact addressed to the Bank in New York, they were aimed unashamedly at information which is within the jurisdiction of the Hong Kong courts and they were therefore intended to have H o.......n\\_.A--:..\\_\\_ :\"'I ....f'-\"- --- - - r - - -- a -- ---e-·---,,- *\"\",,\"'......J* **upu..** ..u~ **....au... ' \\\"**\n- whereby the Bank should not divulge to third persons either the state of the customer's account or any of his transactions with the bank or any information relating to the customer acquired through the keeping of his account unless (1) the disclosure was under compulsion of law, (2) there was a\n- public duty to disclose, (3) the interests of the bank required disclosure or (4) disclosure was made by the express or implied consent of the customer. *(Tournier* v. *National Provincial and Union Bank of England* [1924]1 KB 461 applied.)\n\nThe first exception applied only to Hong Kong law and did not include a\n\nThe third exception meant only the interests of ordinary banking practice, such as when it is necessary to sue upon an overdraft or matters of that kind, and not to the case where it would be in the interests of the Bank to disclose\n\nUnder the Iaws of Rona Kona lllll th.. h..nlr\" \"Q...~,;n,. nn \".4:\\_ \"~\\_I.:-- <sup>L</sup> : \\_\n\n- A opened. But there might be circumstances (for example a special investigation into a suspected fraud) in which the ordinary course of business would be extended and require that such details be sent to another office of the same bank. H the bank were a foreign bank, that might even involve sending the details out of Hong Kong.\n- B 12. The Bank could not avoid its obligation of secrecy by sending details of the plaintiffs' accounts to the head officein NewYork, arguing that this was not a disclosure to a third person. The Bank would not be allowed to make an internal transfer of information which it would not make in the ordinary course of banking business when that transfer was designed for no other C purpose than to bring the information within the jurisdiction of the foreign court. The Hong Kong courts could enjoin the Bank against disclosing information to the U.S. Government in Hong Kong and could restrain a transfer wbicb was notbing more nor less tban a device to avoid tbe enforcement in Hong Kong of the orders of a foreign court.\n- D 13. Tbe court would not be influenced by tbe fact tbat its order migbt result in tbe Bank being in breach of tbe orders of tbe U.S. court. The Hong Kong court was not bound to hold back from enforcing the law of Hong Kong at the dictate of a foreign power.\n- 14. The relevant term implied in a contract between banker and customer can be E stated either as a positive covenant to maintain secrecy or as a negative covenant to maintain secrecyor as a negativecovenant against disclosure. Tbe effect is the same and the customer is entitled to the appropriate remedy, whether tbat be expressed as a mandatory injunction or as a restrictive injunctione . In either case, the injunction will usually be granted even tbougb F no damage isshown,\n\nAppeals dismissed.\n\nL. Hoffman, Q.C. and R. Tong, instructed by Denton Hall Burgin and Warrens, for the plaintiffs. G M. Saville, Q.C. and R. Ribeiro instructed by Johnson, Stokes and Master, for the defendant.\n\n*Separate judgments were delivered* by *members of theCourt 0/Appeal.*\n\n### H Cases cited in tbe judgments:\n\nAU\",\"\"A\" nA\"'A..,,1 \" ~Jf;,.LTl'\" <sup>A</sup> ... <sup>t</sup> D\"'I\",,,,, rn R, <:nnth 'Q\"\"t.'rn D\"'h\"\",, rn fl11';:7\\ T» :l course of banking business when that transfer was designed for no other\n\nC purpose than to bring the information within the jurisdiction of tbe foreign court. The Hong Kong courts could enjoin the Bank against disclosing\n\nwas not bound to hold back from enforcing the law of Hong Kong at the\n\ncovenant to maintain secrecyor as a negativecovenant against disclosure. The effect is tbe same and tbe customer is entitled to the appropriate remedy, wbether tbat be expressed as a mandatory injunction or as a restrictive\n\n14. The relevant term implied in a contract between banker and customer can be\n\nE stated either as a positive covenant to maintain secrecy or as a negative\n\ninformation to tbe U.S. Government in Hong Kong and could restrain a transfer wbicb was notbing more nor less tban a device to avoid tbe\n\nenforcement in Hong Kong of the orders of a foreign court. D 13. Tbe court would not be influenced by tbe fact tbat its order migbt result in tbe Bank being in breach of the orders of tbe U.S. court. The Hong Kong court\n\ndictate of a foreign power.\n\nKleinwort, Sons & Co. *v,* Ungarische Baumwolle Industrie Aktiengesellschaft [1939]2, KB 678, [1939]3 All ER 38 Lister *v,*Romford Ice & Cold Storage Co. Ltd. [1957] AC 555, [1957]1 All ER 125 Liverpool City Council v. Irwin [1977] AC 239, [1976]2 WLR 562, [1976]2 All ER 39\n\nR. *v.* Grossman (1981)73 Cr App R 302 Societe Intemationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers (1958)357 US 197\n\nToumier v. National Provincial and Union Bank of England [1924]1 KB 461 X A.G. *v,* A Bank [1983]2 All ER 464, [1983]2 Lloyd's Rep 535\n\n# Sir Alan Huggins, V.-P.:\n\nThe plaintiff companies brought actions in which the principal relief sought was an injunction to restrain the defendant Bank from disclosing details of their accounts with the Bank. They then applied for, and obtained from the judge in chambers, interim injunctions to restrain I disclosure pending trial. It was against those interim injunctions that the Bank appealed. By consent of the parties this court has agreed that:\n\n- \"1. The hearings of the motions for an interlocutory injunction and for an order discharging that injunction before Clough, J. be treated as having been the I trial of the action.\n- 2. The affidavits sworn on the motions be treated as evidence given at the trial and the interlocutory injunction granted by the judge be treated as a final injunction made at trial.\"\n\nTwo of the plaintiffs are companies incorporated in Hong Kong and the third is a company registered in Panama.\n\nThe Bank has its head office in the United States of America and maintains local branches in Hong Kong. Each of the plaintiffs opened one or more accounts with the bank in Hong Kong. The particulars of those accounts are not material. It is alleged by the plaintiffs that, ( by virtue of the relationships of customer and banker which exist between them and the Bank, the Bank:\n\n\"Owes the plaintiff/s / duty of secrecy and confidence in respect of/the accounts/, or transactions thereto, or securities in respect thereof and all documents and 1 informatioo arisinz therefrom or relatino thereto\" .\n\nSir Alan Huggins, V.-P.: The plaintiff companies brought actions in which the principal relief sought was an injunction to restrain the defendant Bank from disclosing details of their accounts with the Bank. They then applied for, and obtained from the judge in chambers, interim injunctions to restrain I disclosure pending trial. It was against those interim injunctions that the Bank appealed. By consent of the parties this court has agreed that:\n\ntrial of the action.\n\n\"1. The hearings of the motions for an interlocutory injunction and for an order\n\n2. The affidavits sworn on the motions be treated as evidence given at the trial and the interlocutory injunction granted by the judge be treated as a fmal\n\ndischarging that injunction before Clough, J. be treated as having been the I\n\nF\n\n- A plaintiffs first heard ofthe proceedings in the United States, they wrote to the Bank and sought an undertaking that there would be no disclosure. The Bank replied that it was defending the proceedings in the United States and that for the present it did not intend to produce the records demanded. However, the Bank was not prepared to give an undertaking the observance of which might constitute a breach of the United States' law. It was upon receipt B of this refusal that the actions were commenced in Hong Kong.\n- It is not in dispute that the first and fundamental issue to be decided is as to the terms of the several agreements between the plaintiffs and the Bank. As is usual when a company opens a bank account, the plaintiffs passed in respect of each account a resolution in a form prescribed by the Bank. This form was designed merely to set out the authority of the Bank to act upon\n- C instructions purporting to emanate from the customer: the parties did not otherwise expressly agree any of the terms upon which they were contracting. For such terms one has to inquire what terms are implied by the domestic law of Hong Kong, it being an agreed fact that the contracts are governed by Hong Kong law. It is common ground that the terms include one imposing an obligation of secrecy upon the Bank, but it is the extent of that obligation which D is in issue.\n\nOn behalf of the plaintiffs Mr. Hoffman has placed great emphasis on the distinction which was drawn in two cases in the House of Lords between terms which are implied in all contracts between persons entering into a special relationship such as that of banker and\n\ncustomer and those which are implied in a particular contract in order to give it business E efficacy. The first of these cases was Lister v, Romford Ice & Cold Storage Co. Ltd. [1957] AC 555, where one of the issues was whether in a contract of employment between a lorry driver and his master there was an implied term that the driver would be entitled to be indemnified by his master in respect of damages payable by the driver as a result of his negligence where his master was in fact insured or was required by law to be insured or F where , as a reasonable and prudent person, his master ought to have been insured. It was held\n\nthat no such term should be implied. In the course of his speech Lord Simonds said at p. 576:\n\n\"... the real question becomes, not what terms can be implied in a contract between two individuals who are assumed to be making a bargain in regard to a particular G transaction or course of business; we have to take a wide view, for we are concerned with a general question, which, if not correctly described as a question of status, yet can only be answered by considering the relation in which the drivers of motor-vehicles and their employers generally stand to each other. Just as the duty of care, rightly regarded as a contractual obligation, is imposed on the servant, or the H duty not to disclose confidential information (see *Robb* v, *Green* [1895]2 QB 315; 11 **uauA.** a\",,,,v\\lYII.\";'\"u'i~ puuudJ.~.:J j.J\"\" l)V--v1& t'1Ji::»~~\"V1~t.~'ir,\"\"g.l'X)o ...4.-Ja.t- ....C\".i\"'\\A\".JJ....~J\":!L~~ aoJ by the Bank. This form was designed merely to set out the authority of the Bank to act upon C instructions purporting to emanate from the customer: the parties did not otherwise expressly agree any of the terms upon which they were contracting. For such terms one has to inquire what terms are implied by the domestic law of Hong Kong, it being an agreed fact that the contracts are governed by Hong Kong law. It is common ground that the terms include one imposing an obligation of secrecy upon the Bank, but it is the extent of that obligation which D is in issue. On behalf of the plaintiffs Mr. Hoffman has placed great emphasis on the distinction which was drawn in two cases in the House of Lords between terms which are implied in all\n\ncontracts between persons entering into a special relationship such as that of banker and customer and those which are implied in a particular contract in order to give it business E efficacy. The first of these cases was Lister v, Romford Ice & Cold Storage Co. Ltd. [1957] AC 555, where one of the issues was whether in a contract of employment between a lorry driver and his master there was an implied term that the driver would be entitled to be ;nA4rnn;f;4A h\" h;\" m\"\"t<'T ;n TP\"nprt nf thmlll1Pl1 nllVllhlp. hv the driver a~ <sup>a</sup> result of his\n\nevidence given by the parties and the fact that the action is brought without the A assent of the employers shows at least *ex postfacto* how they regardedthe position. But this is not conclusive; for, as I have said, the solution of the problem does not rest on the implication of a term in a particular contract of service but upon more generalconsiderations.\"\n\nLordTuckerexpressed the sameviewin thesewords at p. 594:\n\n\"Some contractual terms may be implied by general rules of law. These general rules, some of which are now statutory, for example, Sale of Goods Act, Bills of Exchange Act, etc., derive in the main from the common law by which they have C become attachedin the course of time to certain classesof contractual relationships, for example, landlord and tenant, innkeeper and guest, contracts of guarantee and contracts of personalservice. Contrasted with such cases as these there are those in which from their particular circumstances it is necessary to imply a term to give efficacy to the contract and make it a workable agreement in such manner as the D parties would clearly have done if they had applied their minds to the contingency which has arisen. These are the 'officious bystander' type of case, to use Mackinnon, LJ.'s well-known words. I do not think the presentcase reallycomesin that category, it seemsto me to fall rather within the first class referredto above.\"\n\nIn Liverpool City Council v. Irwin [1977] AC 239 it was decided that in contracts oftenancy relating to flats there was, in the absence of express provision, an implied term that the landlord wouldtake reasonable care to keep essentialmeans of accessin reasonable repair and usability and that this appliedto local authority lettings.\n\nMr. Saville argues that this is a very different approach from that adopted in the leading F case on the obligationof secrecy imposed on a banker,Tournier v. National Provincial and Union Bank of England [1924]1 KB 461. The plaintiff, a customer of the defendant bank, received a cheque drawn in his favour by another customer of the same bank. Instead of having it credited to his own account the plaintiff endorsedit to a third person, who paid it into his account with another bank. The plaintiff's account was overdrawn and, when the G cheque was returned to the defendant bank, the manager inquired of the third person's bank who the third person was. He was told that the cheque had been paid to a book-maker, and this information was disclosed to the plaintiffs employers. The question was whether the defendantbank was in breachof its impliedobligation of secrecy. All the LordsJusticeswere of opinionthat it was an impliedterm of a contractbetween a bankerand his customer that the H bank wouldnot divulge to thirdnersonseither the stare of the (,l1<1tnmp.r' <I \",('('nunt <sup>M</sup> on\" r:f h;\" ruies, some ot whlcn are now statutory, tor example, Sale of Goods Act, BIlls of Exchange Act, etc., derive in the main from the common law by which they have C become attachedin the course of time to certain classesof contractual relationships, for example, landlord and tenant, innkeeper and guest, contracts of guarantee and contracts of personalservice. Contrasted with such cases as these there are those in which from their particular circumstances it is necessary to imply a term to give efficacy to the contract and make it a workable agreement in such manner as the D parties would clearly have done if they had applied their minds to the contingency which has arisen. These are the 'officious bystander' type of case, to use Mackinnon, LJ.'s well-known words. I do not thinkthe presentcase reallycomesin\n\nthat category, it seemsto me to fall rather within the first classreferredto above.\"\n\nIn Liverpool City Council v. Irwin [1977] AC 239 it was decided that in contracts of tenancy relating to flats there was, in the absence of express provision, an implied term that the landlord wouldtake reasonable care to keep essentialmeans of accessin reasonable renair and B\n\nE\n\n- A facts of the particular case. Lord Justice Atkin at p. 486 also spoke of the difficulty of hitting upon a formula which would define the maximum of the obligation which had necessarily to be implied. He expressed the obligation not to disclose without the customer's consent as being:\n- B \"subject to the qualification that the bank have the right to disclose such information when, and to the extent to which it is reasonably necessary for the protection of the bank's interests, either as against their customer or as against third parties in respect of transactions of the bank for or with their customer, or for protecting the bank, or persons interested, or the public, against fraud or crime.\"\n- C\n\nHe expressly refrained from giving any final opinion on the practice of bankers to give one another information as to the affairs of their respective customers, \"except to say ... that if it is justified it must be upon the basis of an implied consent of the customer\". Nevertheless his reference to the practice of bankers seems to me a clear indication that the Lord Justice D thought such practice was a material consideration and that could only be on the basis that the parties to a banking contract were assumed to know the practice of bankers and would be assumed to have agreed to be contracting subject to that practice in the absence of express provision to the contrary. As it seems to me there is no material distinction between Tournier v. National Provincial and Union Bank of England [1924]1 KB 461 and the later cases, and E where one is considering the implication of a term into a contract the basic element is always that the parties must necessarily be presumed to have intended to contract on the basis of the suggested term. That element will be present both where the term is necessary in order to give the contract business efficacy and also where there is some established practice which a person entering into that type of contract is presumed to accept.\n\n- F In Tournier's case the English Court of Appeal indicated four qualifications to an otherwise absolute obligation of secrecy. Although Mr. Saville contends that the plaintiffs are seeking to widen the ambit of the resulting obligation, as it seems to me his argument seeks to narrow it. It does so by construing the first qualification (disclosure under compulsion of law) as including an order of a foreign court to produce documents which are in Hong Kong. Such\n- G a construction was never within the contemplation of the judges in Tournier's case and in my view a term so construed would not be reasonable. The plaintiffs contracted with the Bank in Hong Kong and it was intended by both sides that the accounts would be kept in Hong Kong. I adopt the view of the English Court of Appeal in R. v. Grossman (1981)73 Cr App R 302 and conclude that the Hong Kong branch of the Bank should for present purposes be\n- H considered as a different entity separate from the head office in New York. Anyone opening -- \\_M~nV.:11..MSI1\\l\\.al(.m'(J.·~l~.y.jl''V'\".f;l} a t inj.b.....QWiUIl..l~ *f'.J:)'1.T.i1l\"* pf\\_bn.~C1l;: \\_thp TP.rI)TCh: persons interested, or the public, against fraud or crime.\" C He expressly refrained from giving any final opinion on the practice of bankers to give one\n- another information as to the affairs of their respective customers, \"except to say ... that if it is justified it must be upon the basis of an implied consent of the customer\". Nevertheless his reference to the practice of bankers seems to me a clear indication that the Lord Justice D thought such practice was a material consideration and that could only be on the basis that the parties to a banking contract were assumed to know the practice of bankers and would be assumed to have agreed to be contracting subject to that practice in the absence of express\n\nprovision to the contrary. As it seems to me there is no material distinction between Tournier v. National Provincial and Union Bank of England [1924]1 KB 461 and the later cases, and E where one is considering the implication of a term into a contract the basic element is always that the parties must necessarily be presumed to have intended to contract on the basis of the suggested term. That element will be present both where the term is necessary in order to give thp. r.nntrnr.t b usiness efficacv and also where there is some established oractice which a\n\nplaintiff's accounts anywhere but in Hong Kong. Had the Bank in the ordinary course of business sent details of the plaintiffs' accounts to its head office in the United States of America the Bank could not properly have volunteered information about the accounts to the United States Government, but Mr. Hoffman concedes that he would then not have been able properly to ask the courts of Hong Kong to restrain production in New York in the face of the orders for production made by the United States courts. As things are, the information is not in the United States of America and it is not suggested that the information is needed in the United States of America in the ordinary course of banking business: it is required by the head office solely for the purpose of its being disclosed to theUnitedStatesGovernment.A B\n\n Mr. Saville's argument involves the contention that, by sending details of the plaintiffs' accounts to the head office, the Hong Kong branch would not be disclosing the information to a third person and that there would therefore be no breach in Hong Kong of the duty of secrecy which could properly be restrained by an injunction of the Hong Kong courts. Although that argument has a superficial attraction, I do not think it can be right. I think it would be closing our eyes to the reality of the situation to allow the Bank to make an internal transfer of information which it would not make in the ordinary course of banking business when that transfer is designed for no other purpose than to bring the information within the jurisdiction of the foreign court. Although the orders of the United States courts are in fact addressed to the Bank in New York, they are aimed unashamedly at information which is within the jurisdiction of the Hong Kong courts and they are therefore intended to have extra-territorial effect. That is the basis of the Attorney General's intervention in the proceedings in the United States of America, where he has indicated that there are alternative procedures which would be open to the United States Government and which would not infringe the sovereignty of the Crown in right of Hong Kong. Mr. Saville argues that orders are commonly made for discovery of documents lying within other jurisdictions, but that is a very different thing from ordering production. The Hong Kong courts could enjoin the Bank against disclosing the information to the United States Government in Hong Kong and I am satisfied that they can restrain a transfer which is nothing more nor less than a device to avoid the enforcement in Hong Kong of the orders of a foreign court.C D E F\n\nIt is then argued that in the exercise of our discretion we ought not to issue an injunction which would place the Bank in the appalling situation that, if it obeyed the injunction, it would be in breach of orders of the courts of its own country. I am not unsympathetic to the difficulty in which the Bank finds itself, but the question is whether we are to treat that difficulty as an overriding factor. In so saying I do not overlook the contention of Mr. Hoffman that in the end the difficulty will be found to be more apparent than real because the existing orders of the United States courts (which are under appeal) will be held to have been wrongly made. . . .\\_ .. \\_ \\_ . For-0-\"'-'\" my part .u. I am not V&. VO> willing to embark upon review of the iuolZmenls.unon • ..uv vVUL\"'UI.1VU .mu, uy :senwng OeUll1S orme p amurts accounts to the head office, the Hong Kong branch would not be disclosing the information to a third person and that there would therefore be no breach in Hong Kong of the duty of secrecy which could properly be restrained by an injunction of the Hong Kong courts. Although that argument has a superficial attraction, I do not think it can be right. I think it would be closing our eyes to the reality of the situation to allow the Bank to make an internal transfer of information which it would not make in the ordinary course of banking business when that transfer is designed for no other purpose than to bring the information within the jurisdiction of the foreign court. Although the orders of the United States courts are in fact addressedtotheBankinNewYork,theyaimedunashamedlyG H C D\n\n in the\n\nextra-territorial\n\nproceedings\n\nprocedures\n\ninfringe the\n\nwithin the which would be open to the\n\nsovereignty\n\neffect.\n\njurisdiction\n\n of the Hong Kong\n\nUnited States of\n\n> of the Crown in right of Hong Kong.\n\n That is the basis of the\n\nAmerica, where he has\n\n are\n\n> courts and they are\n\nUnited States\n\nAttorney  at\n\nGeneral's\n\nindicated that there are\n\nGovernment\n\n Mr. Saville argues that orders\n\ntherefore\n\n> and which would not\n\ninformation\n\n in the\n\nintended to have\n\nintervention\n\nwhich is\n\nalternative\n\nA Kong courts to enforce any obligation of secrecy which, by the law of Hong Kong, is implied by virtue of the relationship of customer and banker. The obligation is implied for the very reason that it is fundamental to that relationship. Mr. Hoffman submits that on the principles stated in Doherty v, Allman (1878)3 AC 709 by Lord Cairns, L.C. the plaintiffs are entitled asof right to an injunction. He said at p. 720:\n\nB\n\nC\n\n\"If parties, for valuable consideration, with their eyes open, contract that a particular thing shall not be done, all that a Court of Equity has to do is to say, by way of injunction, that which the parties have already said by way of covenant, that the thing shall not be done; and in such case the injunction does nothing more than give the sanction of the process of the Court to that which already is the contract between the parties. It is not then a question of the balance of convenience or inconvenience, or of the amount of damage or of injury - it is the specific performance, by the Court, of that negative bargain which the parties have made, with their eyes open, between themselves.\"\n\nD\n\nE\n\nF Mr. Saville replies that the undertaking to maintain secrecy is a positive covenant and not a negative covenant. The relevant term implied in a contract between banker and customer can be stated either as a positive covenant to maintain secrecy or as a negative covenant against disclosure. The effect is the same and the customer is entitled to the appropriate remedy, whether that be expressed as a mandatory injunction or as a restrictive injunction. In either case the injunction will usually be granted, even though no damage is shown, although in special circumstances the court may refuse an injunction and award damages in lieu under the power now granted to it by statute. That is in accordance with the previous Chancery practice stated by Lord Cairns, L.C. in Attorney General v. Mid-Kent Railway Co. & South EasternRailwayCo.(1867)LR3ChApp100,103:\n\n> \"It is true that in many cases where the injury has been trifling, where there has been improper delay, or where the injury is transitory, this Court has left the complainant to his remedy at law\".\n\n> > injunction\n\n does nothing more than give\n\nconvenience\n\n to the\n\nrestrictive\n\n or\n\n is shown, although\n\n covenant\n\nappropriate\n\ninjunction.\n\n in lieu under the\n\n Chancery\n\n-\n\ninconvenience,\n\neither\n\n in\n\n..\n\n against\n\n remedy,\n\n practice\n\n In\n\nG\n\nC\n\nD\n\nE\n\nI\n\n accept that the court has to decide in the particular circumstances of this case whether the interest in preserving the confidence between the Bank and its customers \"is outweighed by other interests to which the law attaches importance\": British Steel Corporation v. Granada Television Ltd. [1981] AC 1096, 1169A. I am not persuaded that it is.\n\nH I would dismiss the appeal. .\n\nthing shall not be done; and in such case the\n\n#### the sanctiontheparties.\n\nnegative\n\ndisclosure.\n\nbe stated either as a positive\n\n whether\n\ncase the\n\nspecial\n\nDOwer now granted to it by statute.\n\n covenant.\n\n that be expressed\n\n The effect is the same and the customer\n\ninjunction\n\ncircumstances\n\n of the process of the Court to that which already is the contract between\n\n It is not then a question\n\n will usually be granted,\n\n the court may refuse an\n\n term\n\n> to maintain\n\nmandatory\n\n That is in\n\n covenant\n\n as a\n\n or of the amount of damage or of injury - it is the specific performance. by the Court, of that negative bargain which the parties have made, with their eyes open, between\n\nof the balance of\n\nthemselves.\" Mr. Saville replies that the undertaking to maintain secrecy is a positive covenant and not a Therelevantimpliedincontractbetweenbankerandcustomercan\n\n a\n\ninjunction\n\n secrecy or as a negative\n\ninjunction\n\naccordance\n\n is entitled\n\n> and award damages\n\n with the previous\n\n or as a\n\n even though no damage\n\n#### 286 HONG KONG LAWREPORTS[1990]1HKLFCase 22-50073 Doc 1409-6 Filed 01/30/23 Entered 01/30/23 10:03:34 Page 11 of 17\n\nNew York has a somewhat different relationship withits customers to that of a bank withits A head office in say Paris or Tokyo, unless some specific agreement is otherwise reached between the two parties to govern theirrespective rightsandobligations. A customer opening an account with any bank in Hong Kong is entitled to assume that the usual rules about confidentiality as stated in Tournier's case apply. He might well have chosen to bank in Hong Kongrather than somewhere else because of the protection our banking law offershim B by insisting that the bank should keep any information about him confidential. There is no reason for him to suspect that the extentof suchconfidentiality mightvaryfrom bank to bank depending on where its headofficeislocated. Whatweare concerned withhereis not,as Mr. Saville put it, the relationship between a foreign bank operating in Hong Kong and its customer. The relationship under consideration is between a bank registered in HongKong C anda customer in HongKong, theirrelationshipbeinggovernedbyHongKonglaw.\n\n Secondly, it is worth citing Kleinwort, Sons & Co. v. Ungarische Baumwolle Industrie Aktiengesellschaft [1939]2 KB678 where du Parcq,L.J. said(atp.699):\n\n\"I do not say for a moment thata sovereign statemay not legislate to control the acts D of its subjects beyond its borders. Of course it may. Nothing can prevent a sovereign state from so legislating, and it is a matter with which theseCourtshave no concern. But it is right that it should be understood that, if a sovereign state legislates so as to interfere with the acts of its subjects outside its own territory and, in a sense, its own jurisdiction, then it cannot expect - and I suppose that no state E would expect - that the courts of another country will enforce that legislation at the expense of their own laws. Primarily it is our business to see thatEnglish contracts are observed and carriedout according toEnglish law.\"\n\nMr. Hoffman arguesthatour caseis a dispute between Hong Kong courts andUnitedStates F courts. With respect to him, I do not see the problem quite in that light. The question is simply oneof applying our ownlaw in our owncourts.\n\nThirdly, the factsof R. v. Grossman (supra) are so apposite that it mightbe usefulto refer to them at some length, though for the purpose of the presentcase I need not go further than repeating the headnote of the report:\n\n~Cl\n\ny U1~\n\nanda\n\nin a sense, its own\n\nare\n\nwould\n\nexpense of their own laws.\n\nlegislates so as to\n\nexpect - that the courts of\n\nobserved and jurisdiction,\n\ninterfere with the acts of its\n\ncarriedout\n\n then it cannot expect - and I\n\nPrimarily it is our\n\naccording to\n\nanother\n\n\"By s. 7 of the Bankers' Books Evidence Act 1879: 'On an application of any party to legal' proceedings a court or judge may order that such party be at liberty to inspectand take copies of any entries in a banker's book for any of the purposes of such proceedings. An order underthis section may be made either with or without H summoning the bank or anv other nanv llnrl llh~l1 hp <,p\",~il n:-- tho h~\\_I••1. . - ' ----; . VU~ n, we- reiauonsrup between a roreign bank operating 10 Hong Kong and Its customer.Theunder\n\n relationship consideration is between a bank registered in HongKong customer in Hong Kong, theirrelationship beinggoverned by HongKong law. Secondly, it is worth citing Kleinwort, Sons & Co. v. Ungarische Baumwolle Industrie Aktiengesellschaft [1939]2 KB678where du Parcq,L.J. said(at p. 699): \"I do not say for a moment thata sovereign statemaynotlegislate to control the actsof its subjects beyond its borders. Of course it may. Nothing can prevent a sovereign state from so legislating, and it is a matter with which these Courtshave noconcern.Butitisrightthatitshouldbeunderstoodthat,\n\ncountry will\n\nEnglish law.\"\n\nsubjects\n\nbusiness to see\n\noutside its own\n\nenforce that\n\n if a\n\nsuppose that no state\n\nthatEnglish\n\nstateand,\n\ncontracts\n\nsovereign\n\nlegislation at the\n\nterritory G\n\nC\n\n D\n\nA B disclosing or permitting inspection of the numbered account aforesaid. The Revenue then decided to apply to the English courts under the Act of 1879 to facilitate the proceedings in Wales and sought an order from an English High Court judge addressed to the English bank's London address. The application was made *ex parte* and the judge granted it, permitting thereby the inspection by the Revenue of the S.I.B. account relating to J.B.K. S.I.B. sought to set aside that order by applying for leave to be joined as a party to the proceedings and then appealed to the Court of Appeal to have the judge's order set aside.\n\n> Held, that in criminal matters an order can be made under s. 7 of'the Bankers' Books Evidence Act 1879 for inspection of the account of a bank's customer even though he is not a party to the proceedings; but only in exceptional circumstances. It was important that the Court should respect the confidence of a bank account and only if the public interest in helping the prosecution outweighed the private interest of confidentiality should inspection be ordered. In the instant case as the English bank's branch in the Isle of Man was subject to Manx law and regulations it was to be considered as a different entity from its headquarters branch in London; thus it should be considered as a foreign bank and, therefore, not subject to the Court's jurisdiction. Accordingly, the Court in its discretion, should not order the English bank's head office to produce the documents in question, although it could be done. The judge's order should be discharged.\"\n\nE\n\nC\n\nD\n\nIt is interesting to note how the English court viewed the English bank in the Isle of Man with its head office in London: a situation which might be compared with the position of Chase in Hong Kong with its head office in New York.\n\n#### F\n\nE\n\n## Silke, J.A.:\n\nOn 28th January 1984 there were issued three writs with statement of claim endorsed. The first by F.D.C. Co. Ltd. - \"F.D.C.\" - the second by Garpeg Ltd. - \"Garpeg\" - and the third by G Vanguard International Manufacturing Inc. - \"Vanguard\". I shall refer to these entities generally as \"the companies\". The defendant in each case was Chase Manhattan Bank N.A. - \"Chase\". Each sought, *interalia,* injunctive relief.\n\nThe injunction sought was in these terms:\n\nThe judge's order should be discharged.\"\n\nrh~QP in Hnna Kono with its head office in New York.\n\nH \"An injunction to restrain the defendant whether by itself, its servants or agents or ~·~~u\\ne..br\"\"\"\"'99Jla\"..W-tn .nd'~a\\_..n~,,~inJT1\\\" lIi,,\"1 o:1n *a* .. (,1U1Qina tn nrnill1r.p. Books Evidence Act 1879 for inspection of the account of a bank's customer even C though he is not a party to the proceedings; but only in exceptional circumstances. It was important that the Court should respect the confidence of a bank account and only if the public interest in helping the prosecution outweighed the private interest of confidentiality should inspection be ordered. In the instant case as the English bank's branch in the Isle of Man was subject to Manx law and regulations it was to D be considered as a different entity from its headquarters branch in London; thus it should be considered as a foreign bank and, therefore, not subject to the Court's\n\n> jurisdiction. Accordingly, the Court in its discretion, should not order the English bank's head office to produce the documents in question, although it could be done.\n\nIt is interesting to note how the English court viewed the English bank in the Isle of Man with its head office in London: a situation which might be compared with the position of\n\nOn 30th January 1984F.D.C.and Garpegfiled summonsseekingan interiminjunction. On A 22nd February 1984Vanguardfiled a similarsummons. Mayo,J. granted*ex parte*injunctions in favour of Garpeg and F.D.C. on 30th January, and a further *ex parte* injunction in similar termswas obtainedfrom Mayo,J. by Vanguardon 14thFebruary.\n\nGarpeg and F.D.C. are both companiesincorporatedand having their registeredoffice and place of business in Hong Kong. Vanguard is a company incorporated in Panamaand having B a registered office and its place of business in Hong Kong. All three are customersof Chase maintaining various accountsat a Hong Kongbranchof that Bank. It is agreedthat the banker customercontractsare governedby HongKong law.\n\nThe *inter partes* hearing took place before Clough, J., who made an order continuing the injunctions,until the trial or further order, on 3rd April 1984. He gave his reservedreasonson C 24th April. Noticeof appealagainsthis orders was filed by Chase on 17thApril.\n\nOn 30th July Chase, as the result of matterswhich had taken place in the United States and to which I shall refer in a moment, applied to Clough, J. for an order discharging the injunctions on the ground of change of circumstance. On 7th August Clough, J. refused the application. A notice of appeal was filed on the same day against that refusal. D\n\nBy consentbefore us, it was agreed:\n\naction.\n\ntrial.\n\n- (1) that the hearings of the motions for interlocutory injunction and for an order discharging that injunction before Clough, J. be treated as having been the trial of the action.\n- (2) the affidavits sworn on the motions be treated as evidence given at the trial and the E interlocutory injunction granted by the judge be treated as a final injunction made at trial.\n\nThis was an eminently sensible course in that there was no further evidenceto be adduced and all relevant matters were before Clough,J. If we were to accede to the courseagreed by counsel, the delay which would be necessitated by a trial and possible subsequent appeal F would be obviated. We agreed that we should take this course and that we should treat this appealas an appealfrom a final order.\n\nThese proceedings stem from the investigations of the Internal Revenue Service of the United States - \"I.R.S.\" - into the affairs of Gucci Shops Inc. and of Mr. Aldo Gucci. The I.R.S. claim that the three companiesin Hong Kong are really the creatureof Aldo Gucci and G Gucci shops and that they have been used as conduits for income of the Gucci interests in order to evadeUnited States tax liability. I do not think it necessary to go into the background of that belief in any detail.\n\nFollowingon that belief and in order to further its investigations,the I.R.S.issuedsummons under the relevant United States legislation to Chase requiring it to produce bank records, H documents and information relating to dealings with Gucci and Aldo Gucci. The summons \\_ •• \\_ ....~. *y\\_'* .vw ..v ......e. .VVA 1'\"\"\"'\" u\"'~u.., vlUU~ll, J., WllU IlIitUe l:Ul uroer conunulng me injunctions,until the trial or further order, on 3rd April 1984. He gave his reservedreasonson C 24th April. Notice of appealagainst his orders was filed by Chase on 17thApril. On 30th July Chase, as the result of matterswhich had taken place in the United States and\n\nto which I shall refer in a moment, applied to Clough, J. for an order discharging the injunctions on the ground of change of circumstance. On 7th August Clough, J. refused the application. A notice of appeal was filed on the same day against that refusal. D By consentbefore us, it was agreed: (1) that the hearings of the motions for interlocutory injunction and for an order\n\ndischarging that injunction before Clough,J. be treated as having been the trial of the\n\n(2) the affidavits sworn on the motions be treated as evidence given at the trial and the E interlocutory injunction granted by the judge be treated as a final injunction made at\n\nThis was an eminently sensible course in that there was no further evidenceto be adduced\n\n~ntl **'.:111** ...~l~\"'3nt **rnn.tt.:uon n,o..a 1-..8.&',........ r\"1\".....-L <sup>T</sup>** T~ '\\_ \\_ ....- - - - .. • . <sup>1</sup>\n\n(Silke, J.A.)\n\nA records from Hong Kong but could not give an assurance that such records would not be produced in the future.\n\nProceedings for enforcement and matters ancillary thereto took a somewhat convoluted path before the United States courts. It is normal procedure, when persons fail to comply with an I.R.S. summons of this nature, that the Attorney General of the United States makes\n\nB application to a District Court, a Superior Court in the Federal System, for an order enforcing the summonses. Such proceedings were begun in the Second Circuit in the New York District Court. Both Chase and the companies intervened in those proceedings as they were entitled to do.\n\nOn 27th March 1984 Goettel, OJ. made an enforcement order in respect of the F.D.C. C account. Chase has appealed this enforcement order.\n\nOn 23rd March 1984 Sweet, OJ. made a similar enforcement order in respect of the Garpeg account, cutting down to some extent the width of the I.R.S. summons. Both Garpeg and Chase have appealed against this order.\n\nOn 6th July 1984 Sweet, OJ. made an enforcement order in respect of the Vanguard D accounts. That order has also been appealed by both Chase and Vanguard.\n\nOn 7th June 1984, subsequent to the *inter partes* hearing on the interlocutory injunctions in Hong Kong, the Attorney General of the United States filed motions for contempt orders against Chase for its failure to comply with the enforcement orders as to the Garpeg and ED.C. accounts.\n\nE On 10th July 1984, after a contested *inter partes* hearing, Sweet, D.J. adjudged Chase to be in contempt on the Garpeg account summons and fined Chase the sum of US\\$lO,OOO per day. The order as to the fine has been stayed. It was this contempt order which led to the application by Chase before Clough , J. to discharge the injunctions.\n\nOn 16th August 1984, again after a contested *inter partes* hearing, Goettel, D.J. adjudged F Chase in contempt for non-compliance with the F.D.C. summons and imposed upon Chase a fine ofUS\\$5,OOO per day. Again, the order has been stayed.\n\nAll the several appeals in the United States are pending and it is worthy of comment that the Crown, with the consent of all parties, has submitted an *amicus curiae* brief and it will seek to be represented before the United States courts at the hearing of the consolidated G appeals - that is the consolidated appeal against the Garpeg and F.D.C. enforcement orders.\n\nThe enforcement orders made by the United States District Court are final and conclusive orders. They can only be altered by an appellate court. The contempt orders are also final and conclusive though they also may be altered upon appeal.\n\nIt will be seen from this brief resume of matters which occurred prior to the hearing of this H appeal that Chase are in a very difficult position. They are caught between the upper ft\"lm\"trm\", of th.. ;n;nnl't ivf>. OTtif>.T~ made in Honz Konz and the nether one of the orders made On 27th March 1984 Goettel, OJ. made an enforcement order in respect of the F.D.C. C account. Chase has appealed this enforcement order. On 23rd March 1984 Sweet, OJ. made a similar enforcement order in respect of the Garpeg\n\naccount, cutting down to some extent the width of the I.R.S. summons. Both Garpeg and Chase have appealed against this order. On 6th July 1984 Sweet, OJ. made an enforcement order in respect of the Vanguard\n\nD accounts. That order has also been appealed by both Chase and Vanguard. On 7th June 1984, subsequent to the *inter partes* hearing on the interlocutory injunctions in Hong Kong, the Attorney General of the United States filed motions for contempt orders\n\nagainst Chase for its failure to comply with the enforcement orders as to the Garpeg and\n\nE On lOth July 1984, after a contested *inter partes* hearing, Sweet, OJ. adjudged Chase to be in contempt on the Garpeg account summons and fined Chase the sum of US\\$lO,OOO per day. The order as to the fine has been stayed. It was this contempt order which led to the\n\narmlication bv Chase before Clough. J. to discharge the injunctions.\n\nF.D.C. accounts.\n\nrelationship whichexists betweenthem a term so wide so that it wouldextend confidentiality A to documents in the possession of a United States bank in defiance of an order of a United StatesCourt.\n\nMr. Saville has, in a very interesting argument, submitted that the test to be applied as to the existence and scope of such an implied term is the specific one - necessity. He further submitsthat even if the termis as wide as that soughtby the companies, then the performance B by Chase of its obligation has in the United States become unlawful and the Bank is thus excused. If we are against him on his general propositions he advances the further argument that the scope of the injunctionsought shouldbe narrowed and, further, that in any event this is not a suitablecase for the Court to give injunctive relief to the companies.\n\nMr. Hoffman, Q.C., with him Mr. Tong, who represents the companies, argues for a C general, not a specific, test of that which is the scope of the implied term - the distinction being between a specific term which the court must be satisfied was necessarily within the contemplation and intention of the parties at the time of their entry into the contract as contrasted with a general impliedterm which is a part of the generallaw and mayor may not necessarily have been in contemplation. I acceptthat wheresuch distinction is madedifferent D principles applyas to the test of the existenceof such a term,\n\nGenerally, on an implied term, we have been referred by counsel to Tournier v. National Provincial and Union Bank of England whichis the *locusclassicus* on the matter. It is only necessary for me to refer to that portionof the headnote at p. 461 which says:\n\n\"It is an implied term of the contract between a banker and his customer that the banker will not divulgeto thirdpersons, withoutthe consentof the customerexpress or implied,either the state of the customer's account, or any of his transactions with the bank, or any information relating to the customeracquired through the keeping of his account, unless the banker is compelled to do so by order of a court, or the F circumstances give rise to a public duty of disclosure, or the protection of the banker's own interests requiresit.\"\n\nAnd,further, to that whichBankes, LJ. said at p. 471:\n\n\"At the presentday I think it may be assertedwith confidence that the duty is a legal one arising out of contract, and that the duty is not absolute but qualified. It is not possibleto frameany exhaustive definition of the duty. The most that can be done is to classifythe qualification, and to indicateits limits.\"\n\nThatsuccinctly exp,resses the position. . . \\_ \\_ .\n\nI~ IIUl a suuaoie case ror tne court to grvetnjunctive relief to the compames. Mr. Hoffman, Q.C., with him Mr. Tong, who represents the companies, argues for a C general, not a specific, test of that which is the scope of the implied term - the distinction being between a specific term which the court must be satisfied was necessarily within the\n\ncontemplation and intention of the parties at the time of their entry into the contract as contrasted with a general impliedterm which is a part of the general law and mayor may not necessarily have been in contemplation. I acceptthat wheresuch distinction is madedifferent D principles applyas to the test of the existence of such a term, Generally, on an implied term, we have been referred by counsel to Tournier v. National\n\nProvincial and Union Bank of England which is the *locus classicus* on the matter. It is only\n\n\"It is an implied term of the contract between a banker and his customer that the banker will not divulgeto thirdpersons, withoutthe consentof the customerexpress or implied,either the state of the customer's account,or any of his transactions with . - -\n\nnecessary for me to refer to that portionof the headnote at p. 461 whichsays:\n\nE\n\nH\n\nG\n\nA take whatever measures they think fit to grant relief to its own national in its own courts. I think it would be quite wrong for us to seek to in any way interfere with their jurisdiction.\n\nI would make but this one comment. It seems a little strange that: (a) in the light of the evidence as to foreign law before us and of the law to which Leggatt, J. made reference in X A.G. v. A Bank [1983]2 All ER 464 (b) in the light of the restatement cited by Sweet, DJ. in B his opinion in the contempt proceedings which reads:\n\n\"Section 420(2) :\n\nIf disclosure of information located outside the United States it is prohibited by a law or regulation of the State in which the information or prospective witness is C located.\n\n- (a) the person to whom the order is directed may be required by the court to make a good faith effort to secure permission from the foreign authorities to make this information available;\n- (b) the court may not ordinarily impose the sanction of contempt, dismissal or D default on the party that has failed to comply with the order for production, except in cases of deliberate concealment or removal of information or of failure to make a good faith effort in accordance with paragraph (a) ....\"\n\n*(Restatement (proposed) of Foreign Relations Law of the United States (Revised)(Tent.* Draft No.3, 15th March 1982»\n\nE\n\nE\n\nadopted or not by the Second Circuit; (c) in the light of the decision of the United States Supreme Court in Societe Internationale Pour Particfpations Industrlelles et Commerciales, S.A. v, Rogers (1958)357 US 197, Sweet, D.J. should, in the contempt proceedings, have held that because \"foreign compulsion\" and \"good faith\" had been raised in F the course of the enforcement proceedings, they were not therefore available to Chase as a\n\ndefence in the contempt proceedings.\n\nWhether the United States courts do or do not wish to place that which appears to be an intolerable burden on an American bank operating outside the confines of the United States is of course entirely a matter for those courts.\n\nG It seems to me that our considerations here are in the context of a banker customer relationship existing in Hong Kong between customers in Hong Kong and a bank in Hong Kong. This is the relevant matter for the purposes of the laws of Hong Kong and in that compendious description I include that which is the basis of all law, the common law, and such statutes as may exist. Chase is, in this context, a Hong Kong bank.\n\n- H If the documents, the production of which is now sought by the I.R.S., not from the **1\",** u.a.~\"\"lv~w~\",,· **VA. · ul...t,.a.d.aloo&-v,,\"•** .....~~~ -.c:- ..,.;, -\\..rJ -\"\"\",&-\",-~\"\"v-\\_ ..L.t»\\_v1P:\"\";4'1~':-o\", C law or regulation of the State in which the information or prospective witness is located. (a) the person to whom the order is directed may be required by the court to make a\n- D good faith effort to secure permission from the foreign authorities to make this information available; (b) the court may not ordinarily impose the sanction of contempt, dismissal or default on the party that has failed to comply with the order for production, except in cases of deliberate concealment or removal of information or of failure to make a good faith effort in accordance with paragraph (a) ....\"\n\nadopted or not by the Second Circuit; (c) in the light of the decision of the United States Supreme Court in Societe Internationale Pour Parttclpattons Industrielles et ,., .... \\_ .... ....1........ C' *A.* **.. . <sup>D</sup> \\_\\_....\\_L\"I** 110C'O\\'1(,~ **TTC** 10~ **CnlAAt T\\ <sup>T</sup>** ~hnnlrf **in** th~ **I\"nnt#'tnnt**\n\n*(Revised)(Tent.* Draft No.3, 15th March 1982»\n\n*(Restatement (proposed) of Foreign Relations Law of the United States*\n\nMr. Saville has said that the \"legal compulsion\" exception is the compulsion of American *A* law - the domiciliary law - which would excuse Chase's compliance with its implied contractual obligations. It is also his contention, though not made with the same strength, that the interests of the Bank necessitate disclosure.\n\nOn the first point, it is implicit in the judgment of my Lord Vice-President that compulsion of law does, and in particularin the circumstances here must, relate to the compulsion of Hong B Kong law and I agree. While I fully accept that the financial implication of this and of the foreign proceedings, on the face of it, would suggest that it would be in the interests of the Bank to disclose and therefore to excuse them under a Tournier exception from the performance of their obligation, I do not read that exception to be in reality such cover. It must mean in the interests of ordinary banking practice, such as when they find it necessary to C sue upon an overdraft or matters of that kind. The issues here are very much wider than those narrow interests of the Bank as I see them to be.\n\nWe are not directly concerned and I do not intend to deal with the issue of the enforcement of foreign revenue proceedings in this jurisdiction. There might well be further argument on this aspect in other applications and it might well be that such enforcement could be a D complete bar. But that is by the way.\n\nIn Tournier, Scrutton, L.J. at p. 480 referred to In re Comptoir Commercial Anversois and Power [1920]1 KB 868 a decision upon which Mr. Saville relies and said of it:\n\n\"The contract is alleged in the claim as 'implied', and according to the decision of E this Court in *In Re reComptoir Commercial Anversois andPower,* implied terms are a question of law for the Court, the jury finding such facts as are necessary or material to enable the Court to judge of the implication. The Court will only imply terms which must necessarily have been in the contemplation of the parties in making the contract. Applying this principle to such knowledge of life as a judge is F allowed to have, I have no doubt that it is an implied term of a banker's contract with his customer that the banker shall not disclose the account, or transactions relating thereto, of his customer except in certain circumstances.\"\n\nI have no doubt at all that in the circumstances of this case such an implied term as I have G indicated necessarily exists and I do not think there are any circumstances on the evidence before us which would dilute it. I equally have no doubt that the terms of the injunction sought are not too wide . For to allow Chase now to transfer any of the records or documents sought by the Internal Revenue Service to their Headquarters in the United States whether in the course of normal banking practice or not, would be to violate the confidentiality which H exists as between Chase in Hong Kong and its customers in Honz Konz.\n\nperrormance or tneir onngauon, 1 do not read that exception to be in reality such cover. It must mean in the interests of ordinary banking practice, such as when they find it necessary to C sue upon an overdraft or matters of that kind. The issues here are very much wider than those\n\nnarrow interests of the Bank as I see them to be. We are not directly concerned and I do not intend to deal with the issue of the enforcement of foreign revenue proceedings in this jurisdiction. There might well be further argument on\n\n> \"The contract is alleged in the claim as 'implied', and according to the decision of E this Court in *In Re reComptoir Commercial Anversois andPower,* implied terms are a question of law for the Court, the jury finding such facts as are necessary or material to enable the Court to judge of the implication. The Court will only imply\n\nthis aspect in other applications and it might well be that such enforcement could be a D complete bar. But that is by the way.","body_zh":"证物6\nF.n.C. Co. Ltd（F.n.C.有限公司）及其他公司\n\n原告（被上诉人）\n与\nThe Chase Manhattan Bank, N.A.（大通曼哈顿银行，N.A.）\n\n被告（上诉人）\n\n（Court of Appeal（上诉法院））（Civil Appeal Nos. 65 and 131 of 1984）\n\nSir Alan Huggins（艾伦·哈金斯爵士）副庭长、Yang（杨法官）及Silke（西尔克法官），上诉法庭法官。24th·27th September and 17th October 1984.\n\n商事及商业法——银行业——保密义务——防止披露的禁令——该义务是否适用于外国银行的香港分行——该义务是否受地域限制——该义务与外国分行及总行在正常业务过程中所需披露之间的关系。\n\n法院实务与程序——外国法院命令是否在香港具有域外效力——适用的礼让原则。\n\n冲突法——适用于解决香港法院与外国法院之间管辖权冲突的司法礼让原则。\n\n被告银行（下称“本行”）的总行设于美国，并在香港设有本地分行。原告为两家香港公司及一家巴拿马公司。它们各自在本行香港分行持有一个或多个账户。\n\nUnited States Internal Revenue Service（美国国内税务局，I.R.S.）拟就针对其他美国纳税人的调查，查阅原告在香港的银行账户。I.R.S.向本行美国总行送达通知，并取得要求提交资料的法院命令。\n\n裁定：\n\n1. 上诉应予驳回。临时禁令不予解除。维护本行与其客户之间保密关系的利益，并未被法律所重视的其他利益所超越。\n\n2. 原告与本行之间的合同受香港法管辖。本案中法院所关注的并非一家在香港经营的外国银行与其客户之间的关系，而是一家在香港注册的银行与一名香港客户之间的关系；该关系受香港法管辖。\n\n3. 合同中存在一项默示条款，对本行施加保密义务；除非（1）披露系受法律强制，（2）存在披露的公共义务，（3）银行利益要求披露，或（4）披露经客户明示或默示同意，否则本行不得向第三人泄露客户账户状况、客户与银行进行的任何交易，或本行因维持其账户而获得的任何与客户有关的信息。（适用 Tournier v. National Provincial and Union Bank of England [1924]1 KB 461。）\n\n4. 第一项例外仅适用于香港法，并不包括外国法。\n\n5. 第三项例外仅指通常银行业务惯例的利益，例如为就透支提起诉讼所必需的情形或类似事项，而不包括因财务义务而披露符合本行利益的情形。\n\n6. 根据香港法律，所有在香港经营银行业务的银行，不论其总行设于何处，均对其客户负有相同义务。\n\n7. 所有在香港银行开立账户的人，无论该银行为本地银行还是外国银行，均有权诉诸香港法院，以执行根据香港法因客户与银行家关系而默示存在的任何保密义务。\n\n8. 就目前目的而言，本行香港分行应视为与设于New York（纽约）的总行分离的不同实体。（遵循 R. v. Grossman (1981)73 Cr App R 302。）\n\n9. 尽管美国法院的命令事实上是向设于纽约的本行作出的，但其毫不掩饰地针对处于香港法院管辖范围内的信息，因此意图在香港产生域外效力。\n\n11. 通常情况下，在正常银行业务过程中，银行会将已开立账户的详情通知总行。但是，在某些情形下（例如对涉嫌欺诈进行特别调查），正常业务过程会扩大，并要求将该等详情发送至同一银行的另一办事处。若该银行为外国银行，这甚至可能涉及将该等详情发送至香港以外。\n\n12. 本行不得通过将原告账户详情发送至纽约总行，并主张此举并非向第三人披露，来规避其保密义务。当该等传递仅为将信息置于外国法院管辖范围内而进行时，本行不得进行其在正常银行业务过程中不会进行的信息内部传递。香港法院可以禁止本行在香港向United States Government（美国政府）披露信息，并可制止一种无非是为规避在香港执行外国法院命令而采取的手段的信息传递。\n\n13. 法院不会因其命令可能导致本行违反美国法院命令这一事实而受影响。香港法院无须因外国势力的指令而停止执行香港法。\n\n14. 银行与客户之间合同中所默示的有关条款，可以表述为维持保密的积极承诺，或反对披露的消极承诺。其效力相同，客户有权获得适当救济，无论该救济表述为强制禁令还是限制性禁令。无论何种情形，即使未证明损害，通常亦会授予禁令。\n\n上诉驳回。\n\nL. Hoffman, Q.C.及R. Tong，由Denton Hall Burgin and Warrens指示，代表原告。\n\nM. Saville, Q.C.及R. Ribeiro，由Johnson, Stokes and Master指示，代表被告。\n\n上诉法院成员分别作出判决。\n\n判决中援引的案件：\n\nKleinwort, Sons & Co. v. Ungarische Baumwolle Industrie Aktiengesellschaft [1939]2 KB 678, [1939]3 All ER 38\n\nLister v. Romford Ice & Cold Storage Co. Ltd. [1957] AC 555, [1957]1 All ER 125\n\nLiverpool City Council v. Irwin [1977] AC 239, [1976]2 WLR 562, [1976]2 All ER 39\n\nR. v. Grossman (1981)73 Cr App R 302\n\nSociete Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers (1958)357 US 197\n\nTournier v. National Provincial and Union Bank of England [1924]1 KB 461\n\nA.G. v. A Bank [1983]2 All ER 464, [1983]2 Lloyd's Rep 535\n\nSir Alan Huggins（艾伦·哈金斯爵士）副庭长：\n\n原告公司提起诉讼，所请求的主要救济为禁令，以限制被告本行披露其在本行所持账户的详情。其后，原告向内庭法官申请并获得临时禁令，以限制在审判前作出披露。本行就该等临时禁令提出上诉。经双方当事人同意，本院同意：\n\n“1. 将在Clough（克拉夫法官）法官面前就中间禁令及解除该禁令命令所举行的动议聆讯，视为本诉讼的审判。\n\n2. 将就该等动议宣誓的宣誓书视为审判中提交的证据，并将法官授予的中间禁令视为在审判中作出的终局禁令。”\n\n两名原告是在香港注册成立的公司，第三名原告是在巴拿马注册的公司。\n\n本行总行设于United States of America（美利坚合众国），并在香港维持本地分行。每名原告均在本行香港分行开立一个或多个账户。该等账户的具体情况并不重要。原告主张，鉴于其与本行之间存在客户与银行家的关系，本行：\n\n“就该等账户、与其有关的交易、就此相关的证券，以及由此产生或与此有关的一切文件和信息，对原告负有保密及信赖义务。”\n\n原告首次获悉美国的诉讼程序时，即致函该银行，并寻求该银行作出不披露的承诺。该银行答复称，其正在应诉美国的诉讼程序，目前无意提交所要求的记录。然而，该银行不准备作出一项其遵守可能构成违反美国法律的承诺。原告正是在收到该项拒绝后，才在Hong Kong（香港）提起本案诉讼。\n\n无争议的是，首要且根本的待决问题是原告与该银行之间若干协议的条款。与公司开立银行账户时的通常做法一样，原告就每个账户均通过了一项采用该银行规定格式的决议。该格式仅旨在载明该银行根据表面上由客户发出的指示行事的授权；双方并未以其他方式明确约定其订约所依据的任何条款。对于此类条款，必须考察Hong Kong（香港）国内法所默示的条款；双方已同意一个事实，即该等合同受Hong Kong（香港）法律管辖。双方一致认为，该等条款包括一项对该银行施加保密义务的条款，但争议在于该义务的范围。\n\n原告代理人Hoffman先生（霍夫曼先生）着重强调，上议院（House of Lords）在两起案件中区分了两类条款：一类是在银行与客户等具有特殊关系的人之间订立的所有合同中均被默示的条款；另一类是为赋予某一特定合同商业效力而在该合同中被默示的条款。第一起案件是Lister v. Romford Ice & Cold Storage Co. Ltd.（李斯特诉罗姆福德冰业及冷藏有限公司案） [1957] AC 555，其中一个争点是，在卡车司机与其雇主之间的劳动合同中，是否存在一项默示条款：如该司机因其过失而应支付损害赔偿金，而其雇主事实上已投保、依法应当投保，或作为合理谨慎之人本应投保，则该司机有权获得雇主的赔偿。法院裁定不应默示该等条款。Simonds勋爵（西蒙兹勋爵）在其意见中于第576页称：\n\n“……真正的问题不再是：在假定两个个人就某一特定交易或业务过程订立协议的合同中，可以默示何种条款；我们必须采取更广泛的视角，因为我们所面对的是一个一般性问题。即使该问题不能准确地称为身份问题，也只能通过考察机动车驾驶员与其雇主通常彼此所处的关系来回答。正如妥为视为合同义务的注意义务施加于雇员，或者不披露机密信息的义务（见Robb v. Green [1895]2 QB 315）施加于雇员一样，……当事人所提供的证据以及未经雇主同意即提起本诉讼这一事实，至少事后表明了他们如何看待该地位。但这并非决定性的；因为，如我所述，该问题的解决并不取决于在某一特定雇佣合同中默示一项条款，而是取决于更一般的考量。”\n\nTucker勋爵（塔克勋爵）在第594页以如下措辞表达了相同观点：\n\n“某些合同条款可由一般法律规则予以默示。这些一般规则，其中有些现已成为成文法，例如Sale of Goods Act（货物买卖法）、Bills of Exchange Act（汇票法）等，主要源自普通法；随着时间推移，它们已附着于某些类别的合同关系，例如房东与租户、旅店经营者与住客、保证合同以及个人劳务合同。与此类案件相对的是那些因其特定情形而有必要默示一项条款，以赋予合同效力并使之成为可运作协议的案件；若当事人曾考虑到已经发生的情形，他们显然会以该种方式作出约定。这些就是借用Mackinnon法官（麦金农法官）的著名表述所称的‘好管闲事的旁观者’型案件。我认为本案实际上并不属于该类别；在我看来，它更应归入上述第一类。”\n\n在Liverpool City Council v. Irwin（利物浦市议会诉欧文案） [1977] AC 239中，法院裁定，就与公寓有关的租赁合同而言，如无明示规定，即默示一项条款，即房东应采取合理注意，使必要的通行设施保持在合理的修缮和可使用状态；该项原则亦适用于地方当局出租的房屋。\n\nSaville先生（萨维尔先生）主张，这一方法与有关银行保密义务的主要案件Tournier v. National Provincial and Union Bank of England（图尼尔诉英格兰国民省级及联合银行案） [1924]1 KB 461所采取的方法大为不同。原告系被告银行的客户，他收到同一银行另一名客户向其开具的一张支票。原告没有将其记入自己的账户，而是将该支票背书给第三人；该第三人将支票存入其在另一家银行的账户。原告的账户已透支；当该支票被退回被告银行时，银行经理向第三人的银行询问该第三人的身份。其获告知该支票已支付给一名博彩经纪人，该信息随后被披露给原告的雇主。争点是被告银行是否违反其默示的保密义务。全体上诉法官均认为，银行与其客户之间的合同中存在一项默示条款，即银行不得向第三人披露客户账户的状况、客户与银行之间的任何交易，或银行因维持该账户而获得的有关客户的任何信息。\n\n然而，该义务受若干取决于具体案件事实的限制。Atkin上诉法官（阿特金上诉法官）在第486页还谈到，难以确定一个界定必须默示之义务最大范围的公式。他将未经客户同意不得披露的义务表述为：\n\n“但受以下限制：银行有权在为保护银行自身利益而有合理必要时，并在该合理必要的范围内披露该等信息；无论是针对其客户，还是针对与其客户进行或为其客户进行的银行交易所涉第三人，或为保护银行、利害关系人或公众免受欺诈或犯罪侵害。”\n\n他明确避免就银行彼此提供其各自客户事务信息的惯例作出任何最终意见，“仅表示……如该惯例有正当性，其依据必须是客户的默示同意”。尽管如此，在我看来，他提及银行的该项惯例清楚表明，该上诉法官认为此类惯例是重要考量；这只能以如下基础为前提：银行合同的当事人被假定知悉银行惯例，并且在无相反明示规定时，被假定同意在受该惯例约束的基础上订约。在我看来，Tournier v. National Provincial and Union Bank of England [1924]1 KB 461与后来的案件之间不存在实质区别；在考虑向合同中默示一项条款时，基本要素始终是必须推定当事人有意以所建议条款为基础订约。无论该条款是为赋予合同商业效力所必需，还是存在某种既定惯例而订立该类合同的人被推定接受该惯例，该要素均会存在。\n\n在 Tournier（图尔尼耶）案中，English Court of Appeal（英格兰上诉法院）指出了原本绝对保密义务的四项限定。尽管 Saville 先生主张原告正试图扩大由此产生的义务范围，但在我看来，他的论点却是在缩小该范围。他将第一项限定（依法强制披露）解释为包括外国法院要求出示位于香港的文件的命令。Tournier 案法官从未设想过这种解释，而且我认为，如此解释的条款并不合理。原告与 Bank（银行）在香港订立合同，双方均意图使该等账户保留在香港。我采纳 English Court of Appeal（英格兰上诉法院）在 R. v. Grossman (1981)73 Cr App R 302 中的观点，并得出结论：就目前目的而言，银行的香港分行应被视为与其位于纽约的总行相分离的不同实体。任何人在香港的银行开立账户，均不会合理地预期银行可在香港以外的任何地点披露有关原告账户的信息。倘若银行在日常业务过程中已将原告账户的详情发送给其位于 United States of America（美利坚合众国）的总行，银行本不应向 United States Government（美国政府）主动提供有关账户的信息；但 Hoffman 先生承认，在此情形下，面对 United States（美国）法院作出的出示令，他将不能适当地请求香港法院禁止在纽约出示该等资料。就现状而言，该等资料并不在 United States of America（美利坚合众国），亦无人主张该等资料在日常银行业务过程中为 United States of America（美利坚合众国）所需：总行索取该等资料，唯一目的是将其披露给 United States Government（美国政府）。\n\nSaville 先生的论点包含如下主张：香港分行将原告账户详情发送给总行，并不构成向第三人披露该等资料，因此不会在香港违反可由香港法院禁令适当禁止的保密义务。尽管该论点表面上颇具吸引力，但我认为其不可能正确。若允许银行进行其在日常银行业务过程中不会进行的信息内部转移，而该转移的唯一目的就是使该等信息落入外国法院的管辖范围内，那便是对现实情况视而不见。尽管 United States（美国）法院的命令实际上是向位于纽约的银行发出的，但其毫不掩饰地针对处于香港法院管辖范围内的信息，因此意图产生域外效力。这正是 Attorney General（律政司司长）介入 United States of America（美利坚合众国）诉讼程序的依据；他在该程序中指出，United States Government（美国政府）可采用替代程序，而该等程序不会侵犯 Crown in right of Hong Kong（代表香港的王室）的主权。Saville 先生主张，要求披露位于其他管辖区的文件的命令很常见，但这与命令出示文件是完全不同的事情。香港法院可以禁止银行在香港向 United States Government（美国政府）披露该等资料；我确信，香港法院可以禁止一种不多不少仅为规避外国法院命令在香港执行而设的转移安排。\n\n随后有人主张，在行使自由裁量权时，我们不应发出禁令，使银行陷入如此骇人的处境：若其遵守禁令，便会违反其本国法院的命令。我并非不同情银行所处的困难，但问题在于我们是否应将该困难视为压倒性因素。如此说来，我并未忽略 Hoffman 先生的主张，即该困难最终将被发现更多是表面上的而非实际的，因为现有的 United States（美国）法院命令（现正上诉中）将被认定为错误作出。……就我而言，我不愿着手审查该等判决。\n\n香港法院有权执行依香港法律因客户与银行关系而默示存在的任何保密义务。该义务之所以被默示，正是因为其对于该关系具有根本性。Hoffman 先生主张，根据 Lord Cairns, L.C.（大法官凯恩斯勋爵）在 Doherty v. Allman (1878)3 AC 709 中阐明的原则，原告当然有权获得禁令。他在第 720 页表示：\n\n“如果当事人为了有价值的对价，在明知情形下约定某一特定事项不得实施，衡平法院所须做的，就是通过禁令说出当事人已经通过契约所说的话，即该事项不得实施；在此情况下，禁令所做的，只是将法院程序的制裁赋予当事人之间已然存在的合同。这就不是便利或不便利的衡量问题，也不是损害或伤害数额的问题——而是法院对当事人在明知情形下彼此订立的该项消极约定作出的实际履行。”\n\nSaville 先生答称，维持保密的承诺是一项积极约定，而非消极约定。银行与客户之间合同所默示的相关条款，可以表述为维持保密的积极约定，或禁止披露的消极约定。其效力相同，客户有权获得适当救济，不论该救济表述为强制性禁令还是限制性禁令。无论何种情形，禁令通常均会获准，即使未证明损害；但在特殊情形下，法院可以拒绝发出禁令，并依现由成文法赋予其的权力判给代替性损害赔偿。这符合 Lord Cairns, L.C.（大法官凯恩斯勋爵）在 Attorney General v. Mid-Kent Railway Co. & South Eastern Railway Co. (1867) LR 3 Ch App 100, 103 中所述的先前衡平法院惯例：\n\n“确实，在许多损害轻微、不当拖延或者损害属暂时性的案件中，本院已让申诉人寻求其普通法上的救济。”\n\n我接受法院必须在本案的具体情形下决定，维护银行与其客户之间保密关系的利益是否“被法律认为重要的其他利益所超过”：British Steel Corporation v. Granada Television Ltd. [1981] AC 1096, 1169A。我并不认为如此。\n\n我会驳回上诉。\n\n286 《香港法律报告》[1990]1HKLF Case 22-50073 Doc 1409-6 Filed 01/30/23 Entered 01/30/23 10:03:34 Page 11 of 17\n\n纽约与其客户之间的关系，在某种程度上不同于总部设在巴黎或东京等地的银行与其客户之间的关系，除非双方另行达成具体协议，以规范各自的权利和义务。任何客户在香港任何一家银行开户，均有权假定 Tournier v. National Provincial and Union Bank of England（图尼埃诉英格兰国民及联合省银行案）所述的通常保密规则适用。客户很可能正是由于本地银行法坚持银行应对有关其本人的任何资料保密而提供的保障，才选择在香港而非其他地方办理银行业务。其没有理由怀疑，该等保密的范围会因银行总部所在地不同而因银行而异。我们在此所关注的，并非如 Saville 先生所称，一家在香港营业的外国银行与其客户之间的关系。所审议的关系，是一家在香港注册的银行与一名香港客户之间的关系，而该关系受香港法管辖。\n\n第二，值得引用 Kleinwort, Sons & Co. v. Ungarische Baumwolle Industrie Aktiengesellschaft（克莱因沃特父子公司诉匈牙利棉花工业股份公司案）[1939]2 KB678，其中 du Parcq, L.J.（杜帕克上诉法官）在第699页称：\n\n“我丝毫不是说，一个主权国家不得立法管制其属民在境外的行为。当然可以。没有任何事情能够阻止一个主权国家作出此种立法，而这不是本法院所关切的事项。但应当明白的是，如果一个主权国家立法干预其属民在其本国领土之外、并在某种意义上亦在其本国管辖范围之外的行为，则它不能期望——而我想任何国家也不会期望——另一国家的法院以牺牲其自身法律为代价来执行该项立法。我们的首要职责，是确保英国合同依英国法得到遵守和履行。”\n\nHoffman 先生主张，本案是香港法院与美国法院之间的争议。恕我不能认同，我并不认为问题应以该种角度看待。问题仅仅是在我们自己的法院适用我们自己的法律。\n\n第三，R. v. Grossman（英国王室诉格罗斯曼案）（上引）中的事实极为切题，因而不妨较详尽地提及；但就本案而言，我无须超出复述该判例报告摘要的范围：\n\n“根据《Bankers' Books Evidence Act 1879》（1879年《银行簿证据法》）s. 7：‘在任何诉讼程序中，经任何一方当事人申请，法院或法官可命令该方当事人为该等程序的任何目的查阅并复制银行簿中的任何记项。本条项下命令可在传唤或不传唤银行或任何其他当事人的情况下作出……’披露或准许查阅上述编号账户。税务机关其后决定依据1879年法案向英国法院申请，以便利在威尔士进行的程序，并向英国高等法院法官申请命令，该命令送达至该英国银行的伦敦地址。该申请系单方提出，法官予以准许，因而允许税务机关查阅与 J.B.K. 有关的 S.I.B. 账户。S.I.B. 申请准许作为程序当事人加入，以寻求撤销该命令，继而向上诉法院上诉，请求撤销法官的命令。\n\n裁定：在刑事事项中，即使银行客户并非程序当事人，仍可根据《Bankers' Books Evidence Act 1879》s. 7 作出命令，查阅其账户；但仅限于例外情形。法院尊重银行账户的保密性至为重要，唯有协助控方的公共利益超过保密的私人利益时，方应命令查阅。在本案中，由于英国银行在马恩岛的分行受马恩岛法律和规例管辖，应视为与其伦敦总部不同的实体；因此，应将其视为外国银行，故不受法院管辖。因此，法院在行使裁量权时，不应命令该英国银行总部交出有关文件，尽管其可以这样做。法官的命令应予撤销。”\n\n值得注意的是，英国法院如何看待总部设于伦敦的英国银行在马恩岛的分行：这一情形可与大通在香港而总部设于纽约的地位相比较。\n\nSilke, J.A.（西尔克上诉法官）：\n\n1984年1月28日，发出了三份附有诉状的传票。第一份由 F.D.C. Co. Ltd.（F.D.C.有限公司，以下简称“F.D.C.”）发出；第二份由 Garpeg Ltd.（加佩格有限公司，以下简称“Garpeg”）发出；第三份由 Vanguard International Manufacturing Inc.（先锋国际制造公司，以下简称“Vanguard”）发出。我将统称这些实体为“该等公司”。每宗案件的被告均为 Chase Manhattan Bank N.A.（大通曼哈顿银行，以下简称“Chase”）。各公司均寻求禁令救济等。\n\n所请求的禁令内容如下：\n\n“一项禁令，禁止被告，无论其本人、其雇员或代理人，或以其他任何方式……”\n\n1984年1月30日，F.D.C. 和 Garpeg 提交传票，申请临时禁令。1984年2月22日，Vanguard 提交了类似传票。Mayo, J.（梅奥法官）于1月30日作出有利于 Garpeg 和 F.D.C. 的单方禁令；Vanguard 又于2月14日从梅奥法官处取得一项内容相似的单方禁令。\n\nGarpeg 和 F.D.C. 均是在香港注册成立，并在香港设有注册办事处及营业地点的公司。Vanguard 是一家在巴拿马注册成立，并在香港设有注册办事处及营业地点的公司。三者均为 Chase 的客户，并在该银行的香港分行维持多个账户。各方同意，银行与客户之间的合同受香港法管辖。\n\n双方当事人出席的聆讯在 Clough, J.（克劳夫法官）席前进行。该法官于1984年4月3日作出命令，将禁令延续至审讯或另有命令为止。他于4月24日给出保留理由。Chase 于4月17日就其命令提交上诉通知。\n\n7月30日，Chase 因美国发生的、我将稍后提及的事项，以情势变更为由向克劳夫法官申请命令解除禁令。8月7日，克劳夫法官驳回该申请。同日，就该项驳回提交了上诉通知。\n\n经本庭同意，各方约定：\n\n(1) 克劳夫法官席前就中间禁令及解除该禁令的命令所进行的动议聆讯，应视为本案审讯。\n\n(2) 就该等动议宣誓的宣誓书，应视为审讯中提交的证据；法官作出的中间禁令，应视为在审讯中作出的最终禁令。\n\n这是一个极为合理的处理方式，因为没有进一步证据需要提出，所有相关事项均已呈于克劳夫法官席前。如我们同意律师所议的处理方式，即可避免因审讯及其后可能发生的上诉而必然造成的延误。我们同意采取该方式，并将本次上诉视为对最终命令的上诉。\n\n本程序源于 Internal Revenue Service of the United States（美国国税局，以下简称“I.R.S.”）对 Gucci Shops Inc.（古驰商店公司）及 Aldo Gucci（阿尔多·古驰）事务所作的调查。I.R.S. 主张，香港的三家公司实为阿尔多·古驰和古驰商店所控制，并被用作古驰利益集团收入的通道，以逃避美国税务责任。我认为无须详细探究该等信念的背景。\n\n基于该等信念并为推进其调查，I.R.S. 根据有关美国立法向 Chase 发出传票，要求其提交与古驰及阿尔多·古驰往来有关的银行记录、文件及资料。该传票……香港的记录，但无法保证今后不会出示该等记录。\n\n在美国法院，执行程序及其附带事项经历了一段颇为曲折的过程。当有关人员未遵从此类 I.R.S. 传票时，通常的程序是由 Attorney General of the United States（美国司法部长）向 District Court（地区法院，即联邦体系中的高等法院）提出申请，请求作出执行传票的命令。\n\n该等程序已在 Second Circuit（第二巡回区）的 New York District Court（纽约地区法院）启动。Chase（大通银行）及各公司均已介入该等程序，这是其有权采取的行动。\n\n1984年3月27日，Goettel, D.J.（戈特尔地区法官）就 F.D.C. 账户作出执行命令。Chase 已对该执行命令提起上诉。\n\n1984年3月23日，Sweet, D.J.（斯威特地区法官）就 Garpeg（加佩格）账户作出类似的执行命令，并在一定程度上缩减了 I.R.S. 传票的范围。Garpeg 和 Chase 均已对该命令提起上诉。\n\n1984年7月6日，Sweet, D.J. 就 Vanguard（先锋公司）账户作出执行命令。Chase 和 Vanguard 均已对该命令提起上诉。\n\n1984年6月7日，即香港关于中间禁令的双方当事人参加听证之后，Attorney General of the United States 针对 Chase 未遵从有关 Garpeg 及 F.D.C. 账户的执行命令，提出作出藐视法庭命令的动议。\n\n1984年7月10日，在一次有争议的双方当事人参加听证后，Sweet, D.J. 裁定 Chase 就 Garpeg 账户传票构成藐视法庭，并对 Chase 处以每日 US$10,000 的罚款。有关罚款的命令已被暂缓执行。正是这项藐视法庭命令导致 Chase 向 Clough, J.（克拉夫法官）申请解除禁令。\n\n1984年8月16日，在又一次有争议的双方当事人参加听证后，Goettel, D.J. 裁定 Chase 因未遵从 F.D.C. 传票而构成藐视法庭，并对 Chase 处以每日 US$5,000 的罚款。该命令同样已被暂缓执行。\n\n美国境内的数项上诉均尚待审理。值得指出的是，Crown（王室）经全体当事人同意，已提交一份 amicus curiae brief（法庭之友意见书），并将寻求在美国法院审理合并上诉时获得代理，即针对 Garpeg 和 F.D.C. 执行命令的合并上诉。\n\nUnited States District Court（美国地区法院）作出的执行命令属于终局性和决定性命令。其只能由上诉法院变更。藐视法庭命令同样具有终局性和决定性，尽管其亦可经上诉而变更。\n\n从对本次上诉听证前所发生事项的这份简要概述可以看出，Chase 处于极其困难的境地。其夹在香港作出的禁令命令这一上磨盘与美国法院作出的命令这一下磨盘之间。\n\n1984年3月27日，Goettel, D.J. 就 F.D.C. 账户作出执行命令。Chase 已对该执行命令提起上诉。1984年3月23日，Sweet, D.J. 就 Garpeg 账户作出类似的执行命令，并在一定程度上缩减了 I.R.S. 传票的范围。Garpeg 和 Chase 均已对该命令提起上诉。1984年7月6日，Sweet, D.J. 就 Vanguard 账户作出执行命令。Chase 和 Vanguard 均已对该命令提起上诉。1984年6月7日，即香港关于中间禁令的双方当事人参加听证之后，Attorney General of the United States 针对 Chase 未遵从有关 Garpeg 及\n\n1984年7月10日，在一次有争议的双方当事人参加听证后，Sweet, D.J. 裁定 Chase 就 Garpeg 账户传票构成藐视法庭，并对 Chase 处以每日 US$10,000 的罚款。有关罚款的命令已被暂缓执行。正是这项藐视法庭命令导致\n\nChase 向 Clough, J. 申请解除禁令。\n\nF.D.C. 账户的执行命令，提出作出藐视法庭命令的动议。\n\n……它们之间存在的关系中有一项如此宽泛的默示条款，以致该条款将把保密义务延伸至美国银行持有的文件，即使此举有违美国法院的命令。\n\nSaville先生提出了一项很有意思的论点，认为就该等默示条款的存在及范围而言，适用的检验标准是具体的标准，即必要性。他进一步主张，即使该条款如各公司所寻求般宽泛，Chase 履行其义务在美国已属违法，因此银行得以免责。如果我们不接受他的总体主张，他进一步论证，应缩窄所寻求禁令的范围；并且无论如何，本案并不适合由法院向各公司给予禁令救济。\n\n代表各公司的 Hoffman, Q.C.（霍夫曼御用大律师）与 Tong先生提出，应就默示条款的范围适用一般性而非具体性的检验标准。两者的区别在于：对于具体条款，法院必须确信该条款在当事人订立合同时必然处于其预期及意图之内；而一般默示条款则属于一般法律的一部分，未必必然处于当事人的预期之内。我接受这样的观点：在作出此种区分的情况下，对该等条款存在与否的检验适用不同原则。\n\n就一般的默示条款而言，律师已向我们援引 Tournier v. National Provincial and Union Bank of England（Tournier诉National Provincial and Union Bank of England案），该案是此事项的权威判例。我只须提及该案第461页判例摘要中的如下部分：\n\n“银行与其客户之间的合同中有一项默示条款，即银行未经客户明示或默示同意，不得向第三人披露客户账户的状况、客户与银行进行的任何交易，或银行因管理其账户而取得的与客户有关的任何资料，除非法院命令强制银行作出披露，或情势引起披露的公共义务，或为保护银行自身利益而需要披露。”\n\n并进一步提及 Bankes, L.J.（班克斯上诉法官）在第471页所说：\n\n“在当今时代，我认为可以有把握地断言，该义务是由合同产生的法律义务；该义务不是绝对的，而是有限制的。不可能对该义务作出任何穷尽性定义。所能做的最多只是对这些限制加以分类，并指出其界限。”\n\n这简明扼要地表达了该立场。\n\n本案并不适合由法院向各公司给予禁令救济。代表各公司的 Hoffman, Q.C. 与 Tong先生提出，应就默示条款的范围适用一般性而非具体性的检验标准。两者的区别在于：对于具体条款，法院必须确信该条款在当事人订立合同时必然处于其预期及意图之内；\n\n相对于一般默示条款，其属于一般法律的一部分，未必必然处于当事人的预期之内。我接受这样的观点：在作出此种区分的情况下，对该等条款存在与否的检验适用不同原则。就一般的默示条款而言，律师已向我们援引 Tournier v. National Provincial and Union Bank of England，该案是此事项的权威判例。我只须\n\n“银行与其客户之间的合同中有一项默示条款，即银行未经客户明示或默示同意，不得向第三人披露客户账户的状况、客户与银行进行的任何交易，或任何与客户有关的资料……”\n\n提及该案第461页判例摘要中的如下部分：\n\n可采取其认为适当的任何措施，在其本国法院中给予本国国民救济。我们以任何方式干预其管辖权将是极不妥当的。\n\n我只作以下一点评论。鉴于：(a) 我们面前有关外国法的证据，以及 Leggatt, J.（莱格特法官）在 X A.G. v. A Bank [1983]2 All ER 464 中提及的法律；(b) Sweet, D.J. 在其藐视法庭程序意见中援引的重述，其中载明：\n\n“第420(2)条：\n\n如披露位于美国境外的资料受到资料或预期证人所在地国家的法律或规章禁止，\n\n(a) 法院可要求被命令所指向的人士作出善意努力，以取得外国主管机关许可提供该资料；\n\n(b) 对未遵从出示命令的当事人，法院通常不得施加藐视法庭、驳回或缺席判决的制裁，除非存在故意隐匿或转移资料，或未依照第(a)项作出善意努力的情形……”\n\n《美国对外关系法重述（修订）（拟议稿第3号，1982年3月15日）》\n\n无论第二巡回区是否采纳该重述；以及 (c) 鉴于 United States Supreme Court（美国最高法院）在 Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers (1958)357 US 197 一案中的裁决，Sweet, D.J. 在藐视法庭程序中本应裁定：由于“外国强制”及“善意”已在执行程序中被提出，Chase 因而不得在藐视法庭程序中援引其作为抗辩。\n\n美国法院是否希望将一项看来无法承受的负担施加于在美国境外经营的美国银行，当然完全是该等法院的事项。\n\n我认为，我们在此所作考虑的背景，是香港客户与香港银行之间在香港存在的银行与客户关系。就香港法律而言，这才是相关事项；在这一综合性描述中，我包括一切法律的基础，即普通法，以及可能存在的成文法。在此背景下，Chase 是一家香港银行。\n\n如果 I.R.S. 目前寻求出示的文件，并非向……索取，\n\n资料或预期证人所在地国家的法律或规章禁止披露位于美国境外的资料。(a) 法院可要求被命令所指向的人士作出\n\n善意努力，以取得外国主管机关许可提供该资料；(b) 对未遵从出示命令的当事人，法院通常不得施加藐视法庭、驳回或缺席判决的制裁，除非存在故意隐匿或转移资料，或未依照第(a)项作出善意努力的情形……”\n\n无论第二巡回区是否采纳该重述；以及 (c) 鉴于 United States Supreme Court 在 Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers (1958)357 US 197 一案中的裁决，Sweet, D.J. 本应在藐视法庭程序中……\n\n《美国对外关系法重述（修订）（拟议稿第3号，1982年3月15日）》\n\n《美国对外关系法重述》\n\nSaville先生表示，“法律强制”例外是美国法——属人法——所施加的强制，该等强制将免除 Chase 遵从其默示合同义务的责任。他还主张，尽管主张力度较弱，银行利益亦使披露成为必要。\n\n关于第一点，副庭长阁下的判决已隐含指出，法律上的强制确实是，并且尤其是在本案情形下必须是，指香港法律的强制；我同意这一点。尽管我完全接受，从表面上看，这一因素及外国程序所涉的财务影响表明，披露将符合银行的利益，因此可根据 Tournier（图尼埃案）例外免除其履行义务，但我并不认为该例外实际上提供了这种保护。它必须是指符合通常银行业务惯例的利益，例如银行认为有必要就透支提起诉讼或处理诸如此类事项时。依我所见，本案争议远远超出银行这些狭义的利益。\n\n我们并不直接涉及外国税收程序在本司法管辖区内的执行问题，我也不打算处理该问题。在其他申请中，这一方面很可能会有进一步的辩论，而且该等执行很可能构成一项完全的障碍。但这只是题外之事。\n\n在 Tournier（图尼埃案）中，Scrutton, L.J.（斯克拉顿上诉法官）在第 480 页提及 In re Comptoir Commercial Anversois and Power [1920]1 KB 868；Saville 先生所依赖的正是该判决，并就此表示：\n\n“诉状中称该合同条款为‘默示’条款；根据本院在 In re Comptoir Commercial Anversois and Power 一案中的判决，默示条款是由法院裁决的法律问题，陪审团则认定法院判断是否存在默示所必需或重要的事实。法院只会默示那些在当事人订立合同时必然已在其考虑范围内的条款。将这一原则适用于法官获准拥有的生活常识，我毫不怀疑，银行家与其客户之间的合同包含一项默示条款，即银行家不得披露其客户的账户或与之相关的交易，除非在某些情形下。”\n\n我毫不怀疑，在本案情形下，正如我所指出的那样一项默示条款必然存在；我也不认为现有证据中存在任何会削弱该条款的情形。我同样毫不怀疑，所请求禁令的条款并不过宽。因为，允许 Chase（大通银行）现在将美国国内税收局（Internal Revenue Service）所要求的任何记录或文件移交至其美国总部，无论是否在通常银行业务惯例中进行，都将违反大通银行在香港与其香港客户之间存在的保密义务。\n\n履行其义务，我并不认为该例外实际上提供了这种保护。它必须是指符合通常银行业务惯例的利益，例如银行认为有必要就透支提起诉讼或处理诸如此类事项时。依我所见，本案争议远远超出银行这些狭义的利益。我们并不直接涉及外国税收程序在本司法管辖区内的执行问题，我也不打算处理该问题。在其他申请中，这一方面很可能会有进一步的辩论。\n\n“诉状中称该合同条款为‘默示’条款；根据本院在 In re Comptoir Commercial Anversois and Power 一案中的判决，默示条款是由法院裁决的法律问题，陪审团则认定法院判断是否存在默示所必需或重要的事实。法院只会默示”\n\n在其他申请中，这一方面很可能会有进一步的辩论，而且该等执行很可能构成一项完全的障碍。但这只是题外之事。","key_entities":["Je","CIPA"],"ecf_references":[],"word_count":10332,"status":"published","published_at":"2023-01-30 00:00:00","created_at":"2023-01-30","updated_at":"2026-08-23 20:57:35"}