China Everbright Bank Co., Ltd. Beijing Pilot Free Trade Zone Business Centre Sub Branch, Previously t/a China Everbright Bank Co., Ltd. Beijing Guanghua Road Branch v. China Kingho Energy Group Ltd and Others

HCA 809/2024

[2024] HKCFI 3586

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 809 OF 2024

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__________________

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DECISION

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A.  Introduction

1.This is the substantial hearing of the plaintiff’s (“P”) amended summons (summons first filed on 2 May 2024 (“Summons”), and amended by Order of Tam J of 7 November 2024 (the “Tam J Order”, and the “Amended Summons”)) for Mareva relief.   

2.On the face of the Amended Summons, P seeks a Mareva Injunction against all 4 defendants (“D1” to “D4”, and collectively “Ds”).  I record however that the application against D2 and D3 has previously been dismissed (on 10 May 2024 during the first hearing).  The part of the application against D1 has been set down to be dealt with on another date before another court. The present hearing hence concerns only D4.

B.  Factual background

3.P is a branch of a bank in Beijing.

4.D1 is a company registered in the Mainland.  D2 was its founder.

5.D2 and D3 are husband and wife.  D4 is their daughter.  They hold Mainland identity cards.  P says that they also hold Hong Kong identity cards, and in the cases of D3 and D4, under different names.

6.Pursuant to a loan agreement dated 28 June 2017 (“Loan Agreement”), P loaned D1 about RMB 439 million (the “Loan”).  D2 to D4 provided personal guarantees for the Loan.  The personal guarantee agreement signed by D4 is dated 28 June 2017 (the “Personal Guarantee”).

7.D1 subsequently defaulted in repayment of the Loan.

8.P in March 2018 filed a suit at the Beijing High People’s Court against Ds.  Upon mediation, P entered into a settlement with inter alios Ds (the “Settlement Agreement”).

9.On 4 September 2018, based on the Settlement Agreement, the Beijing High People’s Court issued against inter alios Ds a judgment in the form of a Conciliatory Statement (the “Conciliatory Statement”).

10.Upon Ds’ subsequent breach of the Conciliatory Statement, P applied to the Beijing High People’s Court for enforcement of the same.

11.P and inter alios Ds subsequently in December 2019 entered into another settlement agreement (the “Enforcement Settlement Agreement”).  Pursuant to its terms, the enforcement proceedings were withdrawn.

12.In 2020, parties entered into an agreement amending the Enforcement Settlement Agreement (the “Enforcement Settlement Agreement (Amendment)”).

13.Upon subsequent breach by Ds of the Enforcement Settlement Agreement (Amendment), and upon P’s application on 21 January 2022, the Beijing 1^st Intermediate People’s Court in notice numbered (2022) 京 01 執 29 号 directed that P’s application for the enforcement of the Conciliatory Statement be accepted.

14.In March 2023, as part of the enforcement process, judicial-ordered auctions of 2 properties owned by D4 were conducted (the “Judicial Auctions”).

15.Enforcement measures in the Mainland did not obtain from Ds sufficient assets for satisfaction of the judgment debt under the Conciliatory Statement.

16.Subsequently, P says that it has discovered certain assets in Hong Kong which belonged to Ds.  Of particular relevance to the present hearing are the following 2 landed properties which P says are owned or held by, or otherwise registered in the name of, D4:

(a)  Flats No. 04 and No. 05 on 25^th Floor Apartment Tower on the Western Side Convention Plaza No. 1 Harbour Road Hong Kong (the “25/F Property”), which, according to the relevant land search records[1], was acquired by “Fok Ping Chau 霍屏舟” at the price of HK$38,000,000 pursuant to a sale and purchase agreement dated 12 May 2010, and has since 29 June 2010 been registered in that name; and

(b)  Flats No. 02 on 35^th Floor Apartment Tower on the Western Side Convention Plaza No. 1 Harbour Road Hong Kong (the “35/F Property”), which, according to the relevant land search records[2], was acquired by “Fok Ping Chau 霍屏舟” at the price of HK$22,000,000 pursuant to a sale and purchase agreement dated 25 March 2010, and has since 3 May 2010 been registered in that name.

17.The present action was then initiated by Writ of 30 April 2024. The Statement of Claim was filed on 30 May 2024.  P avers that the Conciliatory Statement is a foreign judgment which is:

(a)  Final and conclusive on the merits,

(b)  Between the same parties (or their privies) as those before the Hong Kong court;

(c)  Provides for an order against Ds to pay a specific monetary sum to P, and

(d)  Rendered by the Beijing High People’s Court which has competent jurisdiction.

P seeks thereby common law enforcement of the Conciliatory Statement as a final and conclusive foreign judgment, in the sum of RMB 490,454,733.77 with interest.

C.  The affirmations in support

18.One issue has arisen in respect of the affirmations.  After the adjournment of the Summons for substantive argument, and at the same time when P sought amendment of the Summons, it sought leave to rely on the 2^nd affirmation of Wang Yuanyuan (“Wang”) dated 25 September 2024 (“WYY/Aff 2”) during the substantive hearing of the Amended Summons.  Also by the Tam J Order, Tam J refused P leave to do so, save a number of specific paragraphs therein[3] (the “Reserved Paragraphs”), the admissibility of which the learned Judge reserved for my decision.

19.A redacted copy of WYY/Aff 2 has been placed before this Court.  Save those Reserved Paragraphs, the other paragraphs (except some introductory ones) have been redacted out.  I have considered those Reserved Paragraphs.  They concern the household (戶口) files or records in the Mainland of D2 to D4, the marriage and divorce file or records also in the Mainland of D4, and the legal opinion by Beijing Tianyuan Law Firm on Mainland law (“Tianyuen Opinion”) relevant to the understanding and interpretation of those files and records.  I have considered the relevant case law which include Ladd and Marshall.  Events that prompted P to seek those records happened after the adjournment of the Summons. The Reserved Paragraphs are also relevant to the issues under consideration, and in particular risk of dissipation.  I grant P leave to rely on them.

20.With my leave explained above, P’s application is principally supported by Wang’s 1^st affirmation dated 10 April 2024[4] (“WYY/Aff 1”) and WYY/Aff 2.  Also relevant are the several affirmations of Mr Chan Ching Man, principal of Messrs Chan Ching Man & Co, solicitors for P, 3 of which are before this Court.

21.D4 has filed no affirmation in opposition.

D.  D’s stances

22.Mr Ernest Ng, counsel for D4, submits that P’s application “will fail even on P’s own evidence”[5]. Two main points have been put forward: (1) absence of good arguable case, in the sense that the common law enforcement by P of the Conciliatory Statement is an abuse of process (section B of his written submissions); and (2) unexplained and inexcusable delay, and absence of proof of solid basis of risk of unjustified dissipation (which Mr Ng deals with together in section C of his written submissions).  

E.  Whether good arguable case

E.1.  D4’s submissions in gist

23.Mr Ng’s submissions, in summary, are that this action by P, being a common law enforcement action of the Conciliatory Statement, “is contrary to the [Mainland Judgments (Reciprocal Enforcement) Ordinance, Cap 597 (“MJREO”)] and is thus an abuse of process and a fortiori no good arguable case”[6].

E.2.  Whether need to establish “good arguable case” 

24.Mr Wing So, counsel for P, likens the present application to one for a post-judgment Mareva Injunction, so that the threshold which P needs to meet “becomes significant lower”, and that “good arguable case” does not come into play.  He relies on a number of authorities, which include FM Capital Partners Ltd v Frédéric Marino & Ors [2018] EWHC 2612 (Comm), China Citic Bank Corp Ltd (Quanzhou Branch) v Li Kwai Chun & Ors [2018] HKCFI 1800, Ivanhoe Mines Ltd v Gardner [2020] EWHC 144 (Comm),The Export-Import Bank of China v Taifeng Textile Group Co Ltd & Anor [2018] HKCFI 1840,and Menno Leendert Vos v Global Fair Industrial Ltd & Ors (HCA 4200/1995, 25 March 2010).

25.I do not accept Mr So’s submissions in this regard.  All the authorities he relies on, as pointed out by Mr Ng which I agree, either had a domestic decision on foot, or had had a foreign judgment registered.  Those authorities do not support the proposition Mr So puts forward.

26.In my view, the onus remains on P to establish a good arguable case for its common law enforcement action.

27.On the meaning of “a good arguable case”, Mr Ng has cited Toyota Boshoku Europe NV v Kingsville (HK) Enterprises Ltd [2023] HKCFI 1393. Therein, at §10, and citing §29/1/66 of Hong Kong Civil Procedure 2023, Deputy Judge Le Pichon explained that as meaning “one that is more than barely capable of serious argument and yet not necessarily one which the judge believes to have a better than 50% chance of success”.  Mr So has not submitted otherwise.

E.3.  The relevant provisions in MJREO

28.The following sections of the MJREO are relevant:

“2. Interpretation

In this Ordinance, unless the context otherwise requires:

…

Mainland judgment (內地判決) means a judgment, ruling, conciliatory statement or order of payment in civil or commercial matters that is given by a designated court;

…

choice of Mainland court agreement (選用內地法院協議) has the meaning assigned to it by section 3(2);

…

3. Meaning of choice of Hong Kong court agreement and choice of Mainland court agreement

…

(2) In this Ordinance, subject to subsections (3) and (4), choice of Mainland court agreement (選用內地法院協議) means an agreement concluded by the parties to a specified contract and specifying the courts in the Mainland or any of them as the court to determine a dispute which has arisen or may arise in connection with the specified contract to the exclusion of courts of other jurisdictions.

…

5. Application for registration of Mainland judgments

(1) A judgment creditor under a Mainland judgment may apply to the Court of First Instance within the time limit specified in section 7 to have the judgment registered in the Court of First Instance.

(2) On an application made under subsection (1), the Court of First Instance shall order the Mainland judgment to be registered in accordance with this Ordinance if the judgment creditor has proved to the satisfaction of the Court of First Instance that the following requirements are satisfied—

(a) the judgment is given on or after [1 August 2008] by—

(i) a chosen court which is a designated court;

…

(b) the relevant choice of Mainland court agreement is made on or after [1 August 2008] but before [29 January 2024];

(c) the judgment is final and conclusive as between the parties to the judgment;

(d) the judgment is enforceable in the Mainland; and

(e) the judgment orders the payment of a sum of money (not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty).

…

7. Time limit for application for registration of Mainland judgments

(1) The time limit for making an application for registration of a Mainland judgment under section 5(1) shall be 2 years.

(2) The time limit specified under subsection (1) shall be calculated—

(a) where a period for performance of the Mainland judgment has been specified in the judgment, from the last day of the period; or

(b) in any other case, from the date from which the judgment takes effect.

…

16. Recognition of Mainland judgments

(1) Any Mainland judgment which would satisfy the requirements specified in section 5(2)(a) to (e) in an application for registration of the judgment under section 5(1) shall, whether or not the judgment has been registered, be recognized in any court in Hong Kong as conclusive between the parties to the judgment in any proceedings founded on the same cause of action and may be relied on by way of defence or counterclaim in any such proceedings.

…

(3) Nothing in this section shall prevent any court in Hong Kong from recognizing a Mainland judgment as conclusive of any matter of law or fact decided in the judgment if that judgment would be recognized as conclusive under the common law before [1 August 2008].

…

22. Restrictions on proceedings

(1) No proceedings may be brought by a party on the same cause of action in respect of which a Mainland judgment has been given if—

(a) an application for registration of the judgment under section 5(1) is pending; or

(b) the judgment is registered under section 5(2).

(2) No proceedings for the recovery of a sum payable under a Mainland judgment which would satisfy the requirements specified in section 5(2)(a) to (e) in an application for registration of the judgment under section 5(1), other than proceedings by way of registration of the judgment, shall be entertained in any court in Hong Kong.”

E.4.  Whether the Conciliatory Statement would have been registrable

29.For the discussion in this sub-section, I leave aside for the time being the statutory time limit set by section 7 of the MJREO.

30.I am of the view that the Conciliatory Statement would have been registrable:

(a)  To start with, a conciliatory statement, which the Conciliatory Statement is one, falls expressly within the statutory definition of Mainland Judgment;

(b)  The Beijing High People’s Court is a High People’s Court, which is a designated court under Schedule 1 of the MJREO – section 5(2)(a) is hence satisfied;

(c)  In relation to section 5(2)(b):

(i)   The Loan Agreement contains the following clause[7]:

“本合同和本合同所涉及的任何事項適用中國法律，並按照中國法律進行解釋。雙方在履行本合同過程中所發生的爭議，首先應由雙方協商解決；協商不成的，則提交貸款行所在地法院以訴訟方式解決。”

(ii)  The Personal Guarantee contains the following clause:

“第十八條  本合同及本合同所涉及的任何事項適用中國法律，並按照中國法律進行解釋。

第十九條  在履行本合同中發生的或與本合同有關的一切爭議，由雙方友好協商解決。協商不能達成一致時，任何一方可以依法向債權人所在地人民法院起訴。”

(iii) Both documents were made within the period specified by the sub-section;

(iv) As observed by Lisa Wong J in The Export-Import Bank of China at §76, which I respectfully agree, for the purpose of section 3(2) of the MJREO, a general choice of the courts of the Mainland would suffice;

(v)  Section 5(2)(b) is satisfied;

(d)  In relation to section 5(2)(c), P has itself adduced expert evidence showing that the Conciliatory Statement is final and conclusive[8]. On the evidence, I am of the view that section 5(2)(c) is satisfied;

(e)  Sections 5(2)(d) and (e) are plainly satisfied.  If necessary, the opinion of Professor Cao can be referred to[9].

E.5.  Whether the Conciliatory Statement time barred

31.The statutory time limit under section 7 of the MJREO is 2 years from the last day of the period specified for performance of the judgment concerned.

32.That last date specified in the Conciliatory Statement is 27 June 2020[10].

33.By the time when the Writ herein was taken out, the 2-year period had long lapsed.

34.The expiry of the time limit was in fact recognised by P – see the 2^nd affirmation of Mr Chan Ching Man at §9(h)[11].

E.6.  The core question

35.The first point to be considered is the interpretation of section 22 of the MJREO:

(a)  Section 22(1)(b) bites if the judgment concerned is registered under section 5(2);

(b)  Section 22(1)(a) expressly provides that the restrictions on proceedings apply so long as an application for registration is pending, even though registration has not yet been effected;

(c)  Section 22(2) applies to the situation where no application for registration under section 5(1) has been made, but that the judgment concerned “would satisfy the requirements specified in section 5(1)”;

(d)  Section 22(2) clearly applies during the currency of the 2-year time limit;

(e)  Does it continue to apply after the expiry of that period, bearing in mind the absence of any temporal provisions on the operation of section 22(2)?  Mr So agreed that this is the core issue.  I have been informed by Mr So that there is no direct authority on the point. 

E.7  Counsel’s submissions

36.Mr Ng’s submissions may be summarised as follows:

(a)  He refers to the Legislative Council Brief: Mainland Judgments (Reciprocal Enforcement) Bill, §5 of which says that that bill “is modelled on the Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap. 319)”;

(b)  He points to section 8 of the Foreign Judgments (Reciprocal Enforcement) Ordinance, Cap 319 (“FJREO”)[12]. He relies on Re James Chor Cheung Wong [2018] 2 HKLRD 284 wherein Deputy Judge A To, having considered section 8 of the FJREO, expressed the view at §4 that under the FJREO regime, enforcement under the common law is not available;

(c)  Mr Ng further refers to the English position:

(i)    He refers to section 6 of the Foreign Judgments (Reciprocal Enforcement) Act 1933[13];

(ii)   He refers to Dicey, Morris and Collins on Conflict of Laws (16th ed., 2022) at §14-055, that:

“… where the judgment is one which may be registered pursuant to these statutory schemes, enforcement by registration is the exclusive mode of enforcement. Under the 1933 Act, it is expressly provided that no action may be brought at common law upon a judgment capable of direct enforcement by registration under the Act.”

(iii)  He refers to In re New Cap Reinsurance Corpn Ltd (in liq) [2012] Ch 538, wherein Lloyd LJ observed at §62 that:

“The main purpose of section 6 of the 1933 Act is to exclude the use of the common law remedy in relation to a judgment which is registrable …”

(d)  Mr Ng refers to Lu Yongliang v Bank of China Ltd, Dongguan Branch [2021] 6 HKC 46 wherein the Court of Appeal at §56 agreed with counsel’s submissions at §31 that the policy considerations for section 22 of MJREO are:

“(a) A party should not be vexed twice by the same substantive issues;

(b) This is particularly so when the foreign judgment is subject to a pending appeal;

(c) Risk of inconsistent findings in parallel proceedings; and

(d) To preclude a plaintiff who had won only an unsatisfying victory from suing again on the original cause of action hoping to achieve a better result.”

(e)  He submits that under section 22, if the requirements for registration are fulfilled, a judgment creditor under a Mainland judgment cannot seek to enforce the same under common law, else the whole statutory system of registration under the MJREO would be undermined.

37.Mr So dealt with the point orally during the hearing.  He relies on China NPL Holdings Pte. Ltd v Mo Haidan (莫海丹) & Ors [2020] HKCA 1014.  He relies further on Lu Yongliang, and in particular §§47-49 thereof on the interpretation of section 16 of the MJREO, and §55 thereof on the question relating to the Limitation Ordinance, Cap 347.  He submits that any abrogation of common right, in this case the entitlement to seek common law enforcement, should be construed strictly.  He submits further that it would be wrong and absurd to read section 22 of MJREO as meaning what Mr Ng submits it to be.

E.8.  Consideration of the core issue 

38.For the following reasons, I am of the view that P has shown a good arguable case that the Conciliatory Statement may be enforced under the common law despite the MJREO regime:

(a)  An important premise of Mr Ng’s submission is that MJREO is “modelled” upon the FJREO;

(b)  Whilst that may be so, there is at least one important difference between the 2 regimes.  Under the FJREO, the time limit for application under section 4(1) is 6 years after the judgment.  This is to be contrasted with the time limit of 2 years under the MJREO regime;

(c)  The time limit under the FJREO regime is more in line with those set by the Limitation Ordinance, whilst that under the MJREO is much tighter;

(d)  The above are to be considered with the fact that prior to the commencement of the MJREO, judgments from courts in the Mainland could be (but only be) enforced under the common law.  The limitation period was governed by the Limitation Ordinance.  The MJREO regime was introduced to facilitate enforcement of certain types of judgments.  The process was streamlined via registration. The time limit of 2 years is imposed if the streamlined regime is to be taken benefit of.  There is no readily discernable policy or other reasons for the proposition that the common law enforcement route once existed, and in particular during the balance of the longer limitation period, was intended to be abrogated.  There is further no readily discernable policy or other reasons to justify why those other judgments not qualified to be registered could enjoy a longer limitation period, while those which do no longer do;

(e)  I have considered the policy considerations for section 22 of MJREO as explained in Lu Yongliang.  None of them necessarily justifies the abrogation theory put forward by Mr Ng.  In particular, permitting a claimant to start common law enforcement after the expiry of the 2-year time limit under the MJREO regime without any prior attempted registration will not involve the defendant being vexed twice.  Any threat of registration during that 2-year is in my view not sufficient to justify the interpretation Mr Ng puts forward;

(f)  Given the above, the reliance by Mr Ng of the FJREO regime (and the English position under the 1933 Act) is of limited value;

(g)  There is further the explanations given by Lam VP (as the PJ then was) at §§47-49 in Lu Yongliang on the different concepts of “recognition” and “registration” under the MJREO, and how section 22(2) thereof should be read in conjunction with section 16, that:

“47. …s 22(2) should be construed in the context and purpose of the MJREO. It has to be read together with s 16 of the ordinance:

… [the text of which has been cited above and omitted here]

48. Thus, as specifically stated in sub-ss (1) and (3), there are instances where unregistered Mainland judgments are given recognition and effect in the courts in Hong Kong. Under the scheme of the MJREO, recognition and enforcement are two different concepts. The common law in Hong Kong has always given recognition in at least three ways to Mainland judgments which are final and conclusive: (a) through the doctrine of res judicata, see First Laser Ltd v Fujian Enterprises (Holdings) Co Ltd …; (b) foreign judgment as a cause of action on its own, see China NPL Holdings v Mo Haidan [2021] 2 HKC 97, [2021] 1 HKLRD 344; (c) foreign judgment as evidence of foreign law on a particular issue between the same parties, see Guangzhou Green-Enhan Bio-Engineering Co Ltd v Green Power Health Products [2004] 4 HKC 163, [2004] 3 HKLRD 223.

49. In light of s 16, the restriction in s 22(2) of the MJREO cannot be construed in such a way to preclude recognition being given to unregistered Mainland judgments under our common law.”

(h)  Mr Ng submitted that the judgment in China NPL was in fact not one which could be registered under the MJREO.  Whilst that is so, that does not affect the generality of the scope of the 2^nd way of recognition explained by the learned Vice President;

(i)  I accept Mr So’s submissions that Lu Yongliang can be read as supporting the proposition that P’s present claim remains viable;

(j)  For the above reasons, I am of the view that there is a good arguable case that whilst the Conciliatory Statement can no longer be registered after the expiry of the 2-year time limit, it may still be recognised for the purpose of common law enforcement.

E.9.  Conclusion

39.For the above reasons, I am of the view that P has established a good arguable case for common law enforcement of the Conciliatory Statement.

F.  Delay, and risk of dissipation

40.I have considered and reminded myself of the approach explained by the Court of Appeal in Convoy Collateral Ltd v Cho Kwai Chee [2020] 6 HKC 81[14]. I bear in mind in particular of the ultimate question as summarised by Lam VP (as the PJ then was) at §53, and how it is to be answered.  I bear in mind also the relevance of delay and how it bears upon the question of risk of dissipation, as the learned Vice President explained at §§54, and 76-79.

41.I mention one matter to get it out of the way.  As the title of the action shows, D3 and D4 are each being sued in two names.  On the evidence before me, principally the similarity in handwritings (via comparison of signatures), common respective surnames, their personal and corporate association, and the absence of any denial evidence from either of them, I form the view that P has at this stage established that D3 is otherwise known as Zhou Naren, and D4 is otherwise known as Fok Ping Chau.  I am hence satisfied on the evidence that the 25/F Property and 35/F Property are held by D4.

42.I have considered holistically all the evidence.  In particular, I find the following important:

(a)  D4 has repeatedly been in breach of her obligations to pay under the Personal Guarantee, the Settlement Agreement, the Conciliatory Statement, the Enforcement Settlement Agreement, and the Enforcement Settlement Agreement (Amendment), despite the fact that they were mostly in the form of agreed settlements;

(b)  I have considered the observations of Coulson J in Shepherd Construction Ltd v Berners (BVI) Ltd & Anor [2010] EWHC 763 (TCC) at §13, which in my view are applicable;

(c)  I have considered the QCC.com report of 4 February 2024 in respect of D4[15] (the “QCC.com Report”).  It shows that D4 was as at the date of that report facing multiple actions in the Mainland, had one asset freezing order against her, and was the “被執行人” in quite a number of judgments;

(d)  As summarised by Wang in WYY/Aff 1 at §46.4:

“As could be seen in [the QCC.com Report], the records show that [D4] is now involved in 21 cases, and appeared in 14 judgments. A glance of the report will reveal that in at least the vast majority of these cases, [D4] has been the defendant, appellant in a judgment against her, and/or the respondent in enforcement proceedings.”

(e)  Mr So in particular relies upon the 9 “Restriction of High Consumption Orders” against D4 disclosed by the QCC.com Report.  As explained by Professor Cao:

“42. 限制高消費是內地法院針對不履行生效法律文書確定的義務所實施的懲戒措施。目的是為了敦促有履行能力但消極履行，規避執行的債務人履行義務 …

43． 在內地法院決定是否採取限制高消費措施時，法院會考慮被執行人是否有消極履行，規避執行或者抗拒執行的行為以及被執行人的履行能力等因素 …

44 綜上，採取限制消費措施不是內地法院在執行程序中的常規做法，而需要滿足相應的要件和程序規定，並且由法官根據全案情況綜合考慮。法院只有被執行人在執行程序中存在明顯的不誠信的行為時，才會採取這一執行保障性措施，其嚴重程度僅次於列人失信被執行人名單的全面信用懲戒措施。因此，可以認為本案中的各被告存在明顯的不誠信的行為。”

(f)  Wang further says in WYY/Aff 1 at §50 as follows:

“[D] had been evasive and obstructive towards enforcement thus far. Given the long history of breaching deadlines for payments repeatedly following multiple settlements as detailed above, [P] was left with no choice other than to seek enforcement through compulsory measures …”

Wang then proceeds to give particulars of the 2 Judicial Auctions;

(g)  I have considered the contents of WYY/Aff 2.  I have also considered the Tianyuen Opinion, and in particular the following conclusions:

“二、 法律分析與意見

基於上述事實，在沒有其他實質性衝突材料或信息的情况下，根據中國內地法律及相關實踐，可以得出如下結論：

（一）被告二、被告三和被告四同時持有兩套或兩套以上中國內地身份的行為違反中國內地法律法規[16]

…

三、 結論

綜上所述，有相關結論如下：

1. 同時擁有兩套或以上中國內地身份的行為違反了中國法律法規的規定；

2. 內地戶口被注銷後，多項事務辦理或享受相關服務將因無法通過身份核驗而受限，此種情況下，對被告二、被告三和被告四而言，在內地使用香港身份或者在香港居住將更為便利；

3 若用內地身份申請了香港身份之後，再申請港澳居民來往內地通行證，則必須注銷其申請香港身份時的內地戶口；

4. 被告二、被告三和被告四可能同時擁有多套身份，可能通過不同的身份持有不同的出入境證件，僅提供一套身份項下的出入境記錄並不能完全證明其在或者不在中國內地；

5. 鑒於被告二、被告三和被告四的國籍及身份難以核實且詳細地址不明，我們理解委托中國內地法院向其進行送達可能存在障礙；”[17]

(h) D4 used in Hong Kong a name different from hers used in the Mainland, and registered the 25/F Property and 35/F Property under that other name;

(i) I have considered the observations made by G Lam JA (sitting as an additional Judge of the Court of First Instance) at §71 of Beijing Renji Real Estate Development Group Co. Ltd v Zhu Min [2022] HKCFI 1027, which in my view equally apply here;

(j) Mr Ng criticizes the evidence variably as being a snap-shot, historical, far-fetched, being quantum leap, etc. He also goes through the contents of the QCC.com Report and criticizes its value. I have considered those submissions. The facts remain that they are relevant and material as part of the “circumstantial materials that are indicative of risk”[18], and that D4 has filed no evidence in explanation or in rebuttal;

(k) Mr Ng submits that the 25/F Property and 35/F Property were purchased some years ago, and that they have remained registered in the name of Fok Ping Chau 霍屏舟;

(l) I heed those facts. I have stated above my view on the identity of Fok Ping Chau. In the absence of any explanation otherwise, I am entitled to infer that D4 could have been deriving comfort from the difference in her names and had therefore been contented in leaving the 2 properties as they have been since acquisition. There is in my view a real risk that things could in the absence of any injunction change now that P has discovered her 2 different names.

43.I have considered the question of delay.  P has been prosecuting the matters in the Mainland with reasonable diligence.  I have set out the facts above.  It was as a result of Ds’ breaches that successive settlement agreements were reached.  All those took time.  I accept the evidence that P had experienced difficulties in locating the 25/F Property and 35/F Property in Hong Kong. 

44.I note Mr Ng’s submissions that according to the dates on the land search records, P obtained them on 9 February 2024.  I note also his submissions that there had been delay before P actually got WYY/Aff 1 ready and when it ultimately filed the Summons. 

45.I have considered the evidence.  I have in particular considered the 2^nd affirmation of Mr Chan Ching Man.  There was first the intervening Chinese New Year.  P had then received different legal advice on the means of enforcement of the Conciliatory Statement.  The different possibilities considered were apparent on the face of WYY/Aff 2 (it was on its face prepared in support of an application under sections 21L or 21M of the High Court Ordinance, Cap 4).  Some preparation time had to be factored in.  Professor Cao’s opinion was sought, whose report was dated 27 March 2024.  Internal approval to proceed also had to be obtained.  In all, I do not see any unreasonable delay.  Even if there had been any, the delay was not undue, was not unexplained, and that “the stable door was not completely opened”[19].   

46.Having considered all the evidence, I find that P has succeeded in showing objectively that there is a solid basis for concluding there is a real risk of unjustified dissipation of assets by D4.  In reaching that conclusion, I have as above considered the issue of delay.  I do not find any unexplained or undue delay.  In any event, if there had been any delay, the delay as it were does not militate against the risk of dissipation.

G.  Overall conclusion

47.For the reasons set out above:

(a)  I grant D4 leave to refer to and rely on the redacted WYY/Aff 2 and the exhibits adduced thereby;

(b)  I grant against D4, and against D4 only, §1 of the Amended Summons, save that I delete therefrom §1(c)(iii) which relates only to D1;

(c)  I grant the disclosure order against D4, and against D4 only, in terms of §2 of the Amended Summons;

(d)  I am not concerned with §3 of the Amended Summons, which concerns concurrent writ;

(e)  The above injunction against D4 shall continue until final determination of the action herein, or until further order of the Court;

(f)  I grant parties liberty to apply.

H.  Costs

48.I make a costs order nisi that the costs occasioned by the Amended Summons (including any of such costs that have been reserved) be P’s costs in the cause of the action herein, with certificate for counsel.

Mr Wing So, instructed by Chan Ching Man & Co., for the Plaintiff

Mr Ernest Ng, instructed by Watson Farley & Williams LLP, for the 4^th Defendant