Hong Kong Courts refuse challenge to recognise mainland judgment under the Mainland Judgments (Reciprocal Enforcement) Ordinance

In the case of Wang Qian Wei v 郭文雨 & 郭小琼 [2018] HKCFI 2253, the 1st Defendant (a judgment debtor) opposed the Plaintiff’s (the judgment creditor) application to register a judgment of the Intermediate People’s Court of Xiamen (the Mainland Judgment) pursuant to the Mainland Judgments (Reciprocal Enforcement) Ordinance (Cap 597) (the Ordinance). The 1st Defendant relied on three grounds of objections, all of which were dismissed by the Court of First Instance (the Court). Specifically, this case serves as a good reminder that (i) the Ordinance does not restrict applicants for the registration of a Mainland judgment to the original parties to any specified contracts only; and (ii) in the absence of expert evidence on foreign law, it is presumed that the laws of the foreign jurisdiction are the same as Hong Kong laws.

The grounds relied upon by the 1st Defendant were as follows:-

Ground 1 – no choice of Mainland court was made between the Plaintiff and the Defendants (the Parties)

The Plaintiff sued and obtained judgment against the Defendants as an assignee of the contract, which he had bought from the original creditor. The Plaintiff was therefore not a named party to the contract.

The Court held that, so long as there was a choice of Mainland court agreed under the contract, it was sufficient for the purposes of registering the Mainland Judgment for enforcement under the Ordinance. There was no additional requirement that the judgment creditor also had to be a party to the same contract.

Further, given that a “judgment creditor” is defined as “the person in whose favour a Mainland Judgment was given, and includes any person in whom the rights under the judgment have become vested by succession or assignment or otherwise” under the Ordinance, the Court accepted that it was wrong to argue that the Plaintiff, as a judgment creditor, had the entitlement to register the Mainland Judgment (as provided for under the Ordinance) but could not do so because he was not a party to the relevant choice of court.

Ground 2 – even if there was an agreement, it did not confer exclusive jurisdiction to any Mainland court

The 1st Defendant attempted to challenge by way of affirmation evidence that, on Hong Kong counsel’s advice the jurisdiction clause, when properly construed according to the laws of the PRC, did not confer exclusive jurisdiction on any Mainland court.

The Court disagreed with the 1st Defendant’s argument and also criticised that he took this point very late. The Court held that, consistent with a long line of cases, in the absence of expert evidence on overseas (here Mainland) law, the Hong Kong courts will presume that the laws of the Mainland are the same as Hong Kong laws.

Having applied the principles of contractual interpretation and considered the factual matrix, in particular the fact that the Parties had submitted to the jurisdiction of the Intermediate People’s Court of Xiamen and the Higher People’s Court of Fujian to resolve their disputes, the Court agreed that the only reasonable interpretation was that the Parties conferred exclusive jurisdiction to the Mainland courts by way of the jurisdiction clause in the contract.

Ground 3 – the Mainland Judgment was not final and conclusive

Prior to the hearing, the 1st Defendant applied for an adjournment to adduce a Mainland legal opinion on the finality of the Mainland Judgment, but his application was dismissed. The Court again criticised that it was far too late for the 1st Defendant to now raise such an objection, particularly that he had not previously taken any issue on this point as a ground of opposition. The Court also commented that the registration of judgement proceedings were supposed to be “quick and effective“.

Given that a certificate of effectiveness was issued by the Intermediate People’s Court of Xiamen and that there was no appeal following the Higher People’s Court of Fujian’s dismissal of the Defendants’ application for a retrial, the Court held that the Mainland Judgment was final and conclusive.

For the above reasons, the Court dismissed all three grounds of objections, and ordered the judgment to be registered in Hong Kong with costs against the 1st Defendant.

CONCLUSION

This case demonstrates the Hong Kong courts’ general reluctance to refuse an application for the recognition of a Mainland judgment on technical grounds. Where a decision has been rendered in favour of the applicant, the Hong Kong courts will generally recognise it to give effect to the Ordinance, and the courts will do so in an efficient and expedient manner.

 

For more information, please contact Gareth Thomas, Dominic Geiser, Jojo Fan or your usual Herbert Smith Freehills contact.

Gareth Thomas
Gareth Thomas
Partner, Head of commercial litigation, Hong Kong
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+852 2101 4025
Dominic Geiser
Dominic Geiser
Partner, dispute resolution, Hong Kong
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+852 2101 4629
Jojo Fan
Jojo Fan
Senior Associate, dispute resolution, Hong Kong
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+852 2101 4254

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