苏州高新文旅集团有限公司 v. 電競國際集團有限公司
Read the full judgment text of HCRE 28/2024 on BabelCite. This HCRE judgment was delivered on 14 March 2025.
1. Upon the Plaintiff’s ex parte application, on 22 July 2024, Master Hui ordered that a Mainland judgment, namely 江蘇省蘇州市中級人民法院（2021) 蘇05民初202號 (the “ Mainland Judgment ”), be registered pursuant to the provisions under the Mainland Judgments (Reciprocal Enforcement) Ordinance, Cap. 597 (the “ MJREO ”).
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HCRE 28/2024 [2025] HKCFI 1015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE RECIPROCAL ENFORCEMENT CASE NO 28 OF 2024 ________________________ BETWEEN
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________________________ D E C I S I O N ________________________ A. Introduction 1.Upon the Plaintiff’s ex parte application, on 22 July 2024, Master Hui ordered that a Mainland judgment, namely江蘇省蘇州市中級人民法院（2021) 蘇05民初202號 (the “Mainland Judgment”), be registered pursuant to the provisions under the Mainland Judgments (Reciprocal Enforcement) Ordinance, Cap. 597 (the “MJREO”). 2.This is the Defendant’s application by summons dated 30 August 2024 seeking to set aside the registration of the said Mainland Judgment. B. Material Background 3.The Plaintiff is a company incorporated in the Mainland. It has been carrying on a business of providing services relating to event organization. 4.The Defendant is a company incorporated in Hong Kong. It has been carrying on a business relating to electronic sports. 5.On 5 December 2019, the Plaintiff and the Defendant entered into a cooperation agreement (the “Agreement”) for organizing an event named “WESG 2019-2020 Asia China Finals” in Suzhou (the “Event”). 6.The Agreement provided that:-
7.From 6 to 15 December 2019, the Event took place in Suzhou as scheduled. 8.However, the Defendant failed to pay the sum of RMB 1 million as agreed. 9.On 12 December 2019, the Defendant issued an email to the Plaintiff indicating that an urgent board meeting would be held to resolve the matter. It transpired that the Defendant merely paid a sum of RMB100,000 to the Plaintiff. 10.On 13 December 2019, the parties signed a supplemental agreement (the “Supplemental Agreement”). It was agreed that the Defendant should pay the Plaintiff by four instalments. Whilst the Defendant should pay the Plaintiff three respective sums of RMB300,000 by 30 December 2019, 15 January 2020 and 30 January 2020, the balance of the indebtedness should be paid by 31 March 2020. 11.It is the Plaintiff’s case that the Defendant did not make any payment pursuant to the schedule under the Supplemental Agreement. 12.On 18 December 2019, the Plaintiff sent an email to the Defendant. There, the details of the outstanding indebtedness (including the reimbursements) were set out. The Plaintiff requested the Defendant to pay an aggregate sum of RMB3,215,454,50. In response, the Defendant indicated that the outstanding indebtedness would be paid by 10 June 2020. 13.The Plaintiff says that despite the Defendant’s assurance, it had not received a penny. 14.Thus, on 27 January 2021, the Plaintiff commenced legal proceedings against the Defendant in the Mainland. 15.On 17 December 2021, the Intermediate People’s Court of Suzhou (江蘇省蘇州市中級人民法院) (the “Mainland Court”) handed down the Mainland Judgment. The Defendant was ordered to pay:-
C. Summary of the Alleged Grounds to Set Aside the Registration Order 16.The Defendant contended that Master Hui’s order dated 22 July 2024 should be set aside on the following grounds:-
17.I will address each of the Defendant’s complaints in Sections D to H. D. No “choice of Mainland court agreement”? The Relevant Provisions in the MJREO 18.Section 3(2) of the MJREO provides that:
19.Section 5(2)(b) provides that:-
20.Section 18(1)(a) provides that:-
The Relevant Clause in the Agreement 21.Clause 13(3) of the Agreement reads as follows:-
The Defendant’s Complaint 22.Mr Forest Fong (for the Defendant) submitted that:-
Discussion 23.For the following reasons, I reject Mr Fong’s contentions. 24.First of all:-
25.Second, I am of the view that the existence of a condition precedent is neither here nor there. It is not open to the parties to make use of the condition precedent as an excuse to start proceedings in another forum. I cannot see how the condition precedent may avail a party who seeks to escape the contractual bargain. In this connection, Ms Joanne Szeto (for the Plaintiff) correctly pointed out that by using the word “should (應)” in clause 13(3), the parties accepted that the obligation to litigate in Suzhou was mandatory. 26.Third, Ms Szeto also correctly pointed out that section 3(2) of the MJREO merely requires the jurisdiction clause to specify the court in Mainland to the exclusion of the courts in other jurisdictions. The question as to whether the Mainland court should have exercised jurisdiction is another matter. This is a matter for the Mainland Court to decide. For present purposes, it is not open to the Defendant to contend that the Mainland Court should not have exercised jurisdiction pursuant to clause 13(3). This is not a recognized basis for resisting registration. 27.Fourth, in any event, I disagree with Mr Fong’s suggestion that the condition precedent was not fulfilled as alleged and that the Mainland Court should not have exercised jurisdiction:-
28.For the above reasons, I find that clause 13(3) of the Agreement is in fact a “Mainland court agreement” within the meaning of the MJREO. I also find that the condition precedent under clause 13(3) was fulfilled. 29.Accordingly, the first ground for setting aside the registration of the Mainland Judgment fails. E. Penalty? The Relevant Provisions in the MJREO 30.Section 5(2)(e) of the MJREO provides that:-
31.Section 18(1)(a) provides that:-
The Defendant’s Complaint 32.The Defendant contended that the award of RMB864,777.63 under the Mainland Judgment constituted a penalty against the Defendant. Relying on China Great Wall Amc (International) Holdings Co Ltd v Royal Bon Investment Ltd & Ors (HCMP 209/2020, 29 September 2021) at paras 29 to 35 (per Au-Yeung J), Mr Fong submitted that the award in question was not a genuine estimate of the loss that the Plaintiff suffered. Discussion 33.With no disrespect, the Defendant simply barked up the wrong tree. Bearing in mind that the Agreement is governed by PRC law, the question is not whether the sum awarded under the Mainland Judgment is a pre-estimate of the Plaintiff’s loss. The Defendant cannot seek to re-argue the matter substantively as if the Agreement were governed by Hong Kong law (which is not the case)[2]. Instead, the question is simply whether the relevant part of the Mainland Judgment is a “compensation” or an “enforcement of a power or right at the instance” of the public bodies in the Mainland. 34.In United State of America v Inkley (1989) 1 QB 226 at 226, Purchas LJ stated:-
35.In SA Consortium General Textiles v Sun & Sand Agencies Ltd [1978] QB 279 at 299F-300B, a French company obtained a judgment against an English company from a French court. The French court awarded a sum of 10,000 francs against the English company on the basis that it abusively resisted a straightforward claim. The French company then sought to register the French judgment in England pursuant to the Foreign Judgments (Reciprocal Enforcement) Act 1933, which contained a provision that was similar to section 5(2)(e) of the MJREO. The English company argued that the award amounted to a penalty and was punitive in nature. Lord Denning MR rejected this argument. His Lordship stated:-
36.Mr Fong did not have an answer to the aforesaid authorities. 37.In my view, the award of RMB864,777.63, which arose from a personal claim, is plainly “compensatory” or “remedial” in nature. The award is a sum payable to an individual company, as opposed to a public body or state organ: see SA Consortium General Textiles (supra) at 300A. There is no suggestion that the award in question has anything to do with the exercise of powers or imposition of sanction by the public authorities in the Mainland: see USA v Inkley (supra) at 226. 38.As pointed out by Ms Szeto (for the Plaintiff), the award under the Mainland Judgment aims at compensating the Plaintiff for its loss arising out of the breach of contract on the part of the Defendant. In this connection, it is not in dispute under article 114 of the Mainland Contract Laws and article 29 of the Provisions of the SPC on Jurisdiction over Foreign-Related Civil and Commercial Cases, whilst contractual parties may agree on the contractual damages and the method for calculating compensation, if the agreed damages are excessive, the People’s Courts should reduce the same taking into account the relevant circumstances. 39.In these premises, by adjusting the interest from 0.5% per day[3] to 4 times of the national interbank lending rate[4], the Mainland Court sought to ensure that the Plaintiff would not be overcompensated. In this connection, the Mainland Court must be aware of the facts that (i) the principal amount was based on the contractual deadlines under the Supplemental Agreement, and it reflected the cumulative unpaid balances at each phrase; (ii) the Plaintiff granted the Defendant time extension for making the payments; and (iii) the Plaintiff borne the costs of performing the Agreement out of its own pocket, and the Plaintiff was never reimbursed. 40.In the circumstances, it is plain and obvious that in granting the award of RMB864,777.63 in favour of the Plaintiff, what the Mainland Court sought to do was to ensure that the Plaintiff was adequately (but not excessively) compensated. This was a “compensatory” or “remedial” exercise, and the process was not “punitive” in nature at all. 41.In the premises, the second ground for setting aside the registration of the Mainland Judgment fails. F. Not Summoned to Appear in the Proceedings before the Mainland Court? The Relevant Provisions in the MJREO 42.Section 18(1)(f)(i) the MJREO provides that:-
43.Section 18(2) provides that:-
The Defendant’s Complaint 44.It is the Defendant’s case that it had never been informed of the legal proceedings before the Mainland Court, and no documents or notifications had been received. Was the Defendant Summoned according to Mainland law? 45.In her submissions, Ms Szeto (for the Plaintiff) pointed out that:-
46.In the Mainland Judgment[5], it was expressly stated that the Defendant was “lawfully summoned” to appear before the Mainland Court, but the Defendant did not appear. As such, the Defendant was deemed to have abandoned its rights to contest the proceedings, and the Plaintiff’s claims were partially established. The relevant part of the Mainland Judgment reads as follows:
47.The contents of the Mainland Judgment are not only evidence of the law in the Mainland: Guangzhou Green-Enhan Bio-Engineering (supra) at para 2(c), but also evidence of the relevant events that took place in the legal proceedings before the Mainland Court. 48.The Defendant is unable to adduce a shred of evidence that contradicts the contents of the Mainland Judgment. There is no basis for suggesting that the contents of the Mainland Judgment were wrong. 49.In the premises, I find that the Defendant was in fact summoned to attend the Mainland Court according to the law in the Mainland. There is no room for the Defendant to seek relying on section 18(1)(f)(i) the MJREO. For this reason alone, the Defendant’s third ground for setting aside the registration of the Mainland Judgment must fail. Was the Defendant Summoned by Public Announcement? 50.Furthermore, according to Mr Shao, ie the Plaintiff’s expert on Mainland law:-
51.The Defendant’s expert and/or Mainland lawyers could have raised enquiry with the Mainland Court to ascertain whether Mr Shao’s assertion was true or not. For reasons best known to those who manage and advise the Defendant, the Defendant has not adduced any evidence to contradict Mr Shao’s assertion that the Mainland Court did effect service on the Defendant by public announcement. 52.In this regard, the Mainland Judgment records that the Mainland Court charged a public announcement fee of RMB300[8]. This further evidences the fact that the Mainland Court effected service on the Defendant by public announcement. 53.In the premises, I am satisfied that the Mainland Court did effect service on the Defendant by public announcement according to the law of the Mainland. 54.By virtue of section 18(2) of the MJREO, section 18(1)(f) is not applicable. This is an additional reason for rejecting the third ground for setting aside the registration of the Mainland Judgment. Service via Judicial Assistance of Hong Kong 55.The parties engaged in a heated debate on the question whether there was additionally effective service on the Defendant via the judicial assistance of the High Court in Hong Kong. In light of the findings and conclusion set out above, it is unnecessary for me to decide this issue. However, I will still set out my views as follows. 56.Relying on the opinion of the Defendant’s expert on Mainland law, ie Mr Rong Yong Yi, Mr Fong contended that the service pursuant to 《最高人民法院關於涉港澳民商事案件司法文書送達問題若干規定》 (the “SPC Services Provisions”) was invalid. The submissions can be summarized as follows:-
57.I am not persuaded by Mr Fong’s submissions. 58.Ms Szeto helpfully referred me to China Citic Bank Corporation Ltd (Quanzhou Branch) v Li Kwai Chun & Ors [2019] HKCFI 2540 at paras 71 to 80. There, Keith Yeung J pointed out that:-
59.Keith Yeung J’s ruling in China Citic Bank (supra) is pertinent to the present case. Whilst clause 12(1) provided that documents or notices relating to the performance of the Agreement[9] should be served at the Contractual Addresses set out on page 1 of the Agreement, clause 12(2) provided that if a party changed its address, it should inform the other party in writing within 5 days. 60.In the premises, if the Defendant had no knowledge of the proceedings before the Mainland Court as alleged, the Defendant only had itself to blame. The Defendant knew and ought to know that documents relating to the Agreement would be served at its Contractual Address. This was what the Agreement stipulated. The Defendant could not evade service by refusing to provide a valid address to the Plaintiff pursuant to clause 12(2) of the Agreement. 61.Insofar as the point mentioned in paragraph 58(4) above is concerned, the Plaintiff’s expert, ie Mr Shao, pointed out that pursuant to article 8 of 《最高人民法院關於進一步推進案件加強民事送達工作的若干意見》(the “SPC Guideline on Civil Service”) and article 3 of 《最高人民法院關於進一步推進案件繁簡分流優化司法資源配置》(the “SPC Guideline on Optimization of Judicial Resources”), it is permissible to effect service at a contractually agreed address. I accept Mr Shao’s opinion. In my view, Mr Shao’s opinion is consistent with, and indeed bolsters, Keith Yeung J’s analysis in China Citic Bank (supra). 62.In the premises, I am of the view the Mainland Court had, via the judicial assistance provided by the High Court of Hong Kong, effectuated valid service on the Defendant at its Contractual Address, and pursuant to article 12(3) of the SPC Service Provisions, the service was acceptable and had been confirmed. 63.For all the above reasons, the third ground for setting aside the registration of the Mainland Judgment fails. G. Material Non-Disclosure? 64.The Defendant accuses the Plaintiff of failing to disclose the fact that it received a sum of RMB300,000 on 11 December 2019 in cash. 65.The Plaintiff denies that the payment was received at all. 66.Mr Fong fairly accepted that the Defendant’s complaint was a bare assertion and that the Defendant had failed to adduce any documentary evidence to prove that it made the payment in question. 67.In the premises, the Plaintiff’s complaint is not made out, and the fourth ground for setting aside the registration of the Mainland Judgment fails. H. Inflated Figure 68.In his submissions, Mr Fong pointed out that whilst the Court fees under the Mainland Judgment were only RMB 32,541, in the registration order dated 22 July 2024 and the notice of registration dated 19 August 2024, the figure was inflated to RMB328,841. 69.Ms Szeto accepted that the figure in the registration order and the notice of registration was incorrect. 70.In my view, this was a clerical error. It was ascribed to the oversight on the part of the Plaintiff’s former legal representatives (who prepared the draft order) and the judicial clerk (who approved the draft order). In the affirmations filed on behalf of the Plaintiff at the ex parte stage, it was repeatedly stated the Court fees under the Mainland Judgment were only RMB 32,541. It was plain and obvious that the Plaintiff did not seek to mislead the Court and did not seek to obtain any unfair advantage. 71.In the premises, there is no reason why this court may not invoke the slip rule under Order 20, rule 11 to rectify the error. Order 20, rule 11 provides that:- “Clerical mistakes in the judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on summons without any appeal.” 72.It is not desirable to deregister the order dated 22 July 2024 (or part thereof) and require the Plaintiff to re-register the same. This is against the notion of procedural economy, reasonable proportionality and effective resolution of the parties’ substantive dispute: see Order 1A, rule 1(c) to (e). 73.The appropriate course to take is to accede to the Plaintiff’s amendment application under the summons dated 28 February 2025, and rectify the error contained in the registration order dated 22 July 2024 pursuant to Order 20, rule 11. I. Disposition and Conclusion 74.For the reasons set out in sections D to H above, none of the grounds for setting aside the registration of the Mainland Judgment is made out. 75.Accordingly, I dismiss the Defendant’s summons dated 30 August 2024. 76.For the reasons set out in Section H above, I also make an order in terms of paragraphs 1 and 2 of the Plaintiff’s summons dated 28 February 2025. 77.The Plaintiff is the successful party and hence entitled to costs. 78.However, it appears to me that the Plaintiff failed to put its house in order, and the Defendant was entitled to express its concern about the clerical error in respect of the Court fees charged by the Mainland Court. I am inclined to the view that Plaintiff (i) should only be awarded 95% of the costs in respect of the Defendant’s summons dated 30 August 2024; and (ii) is not entitled to recover the costs in respect of its summons dated 28 February 2025. 79.In the premises, I make a costs order nisi that (i) the Defendant should pay 95% of the Plaintiff’s costs in respect of the summons dated 30 August 2024 to be taxed if not agreed (with certificate for counsel); and (ii) there be no order as to costs in respect of the Plaintiff’s summons dated 28 February 2025. J. Other Matters 80.Lastly, I express my gratitude to Mr Forest Fong and Ms Joanne Szeto for their helpful assistance.
Ms. Joanne Szeto, instructed by Sit, Fung, Kwong & Shum, for the Plaintiff Mr. Forest Fong, instructed by Simon Ho & Co., for the Defendant [1] See page 8 [2] Under clause 13(1), the Agreement is governed by Mainland law. [3] This was what the Plaintiff claimed in the proceeding before the Mainland Court. [4] Ms Szeto pointed out that the aggregate interest was slightly about 16%. [5] See page 10 [6] This referred to the Plaintiff [7] This referred to the Defendant [8] See page 11 of the Mainland Judgment. [9] In this connection, I am of the view the Court documents relating to the proceedings in the Mainland were concerned with the performance of the Agreement. It was apparent that the Plaintiff sought to compel the Defendant to perform its obligations under the Agreement, ie to make payments. | |||||||||||||||||||
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