CHO GWAN JIN v SHIN HONG WOO

DCCJ 4627/2021

[2026] HKDC 1244

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4627 OF 2021

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BETWEEN

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DECISION

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INTRODUCTION

1.There are three summonses before the court:

(1) Summons dated 13 November 2025 taken out by the plaintiff (“P”) for summary judgment against the defendant (“D”) (“P’s O14 Summons”);

(2) Summons dated 27 March 2026 taken out by D for leave to amend his Re-Amended Defence (“D’s Amendment Summons”); and

(3) Summons dated 23 April 2026 taken out by P to amend P’s O14 Summons in which P’s name was spelt incorrectly (“P’s Amendment Summons”).

2.At the start of the hearing, Ms Nicola Ho, counsel for D, indicated that D had no objection to P’s Amendment Summons. I made an order in terms of P’s Amendment Summons.

3.Mr Edward Chin (leading Mr Arthur Wan), counsel for P, invited the court to first deal with D’s Amendment Summons before P’s O14 Summons. I indicated to counsel that I was not prepared to give a ruling on either of these applications at the hearing. As such, for the purpose of the hearing, D’s proposed amendments would be considered on a de bene esse basis and parties were invited to make submissions on that basis.

BACKGROUND

4.P’s claim here is a straightforward one for the recognition and enforcement of a judgment rendered by a court in the Mainland of the People’s Republic of China (“PRC”).

5.In order to understand the parties’ respective case in this action, it is useful to first set out the background and the two PRC judgments that led to the present action in Hong Kong.

6.P is a businessman who resides in Hong Kong and engaged in the business of electronic and electrical components.

7.D is also a businessman who resides in Hong Kong and is engaged in various businesses including food and beverage business in Hong Kong and Mainland China.

8.P and D are both Koreans. They were friends for more than 20 years.

9.At all material times, D is a director of Sorabol (Guangdong) Co., Ltd, a company incorporated in Hong Kong (“Sorabol”). Sorabol holds 100% of the shares in 深圳新羅寶餐飲管理有限公司 (“SZ Sorabol”) which in turns owns a restaurant in Shenzhen (“the Restaurant”). D was the manager of the Restaurant, in charge of its daily operations and corporate affairs.

10.In around April to May 2014, as the tenancy agreement of the Restaurant came to an end, D began the process of inviting investors to invest in the renovation of the Restaurant.

11.On around 12 December 2014, P, D and one 羅正柱 (“Na”) executed a 股權轉讓意向書 (“12 Dec Agreement”) whereby P and Na would inject funds into the Restaurant and, in return, P would obtain a 50% interest and Na would obtain a 30% interest in the Restaurant. The parties subsequently entered into a Supplemental Agreement dated 22 December 2014 (“Supplemental Agreement”) which set out the administrative details following the shareholding changes under the 12 Dec Agreement.

12.After P made his payments to D, no share transfer was made in accordance with the parties’ agreement. Upon investigation, it was discovered that because the Restaurant was solely owned by SZ Sorabol, D had no authority to transfer a 50% interest in the Restaurant to P, nor could he legally register a 50% share of the Restaurant under the name of P.

13.Meanwhile, in 2015 an employee at the Restaurant, Mr Huang Miao Sun (“Huang”), commenced a civil action before the Primary People’s Court of Qianhai Cooperation Zone of Shenzhen City of Guangdong Province (廣東省深圳前海合作區人民法院) (“Qianhai Court”) against D for the repayment of loans in the total sum RMB800,000 under action no. (2015) Shen Qian Fa She Wai Chu No 337 (“2015 Action”). The Qianhai Court found that the RMB800,000 in question was not a loan, but a part payment made by P (through Huang) to D for the transfer of interest in the Restaurant (“2015 Judgment”).

14.On 19 September 2016, P commenced a civil action against D before the Qianhai Court under the action no. (2016) Yue 0391 Minchu No 1798 (“1^st Instance Action”). P claimed against D for breach of the 12 Dec Agreement and the Supplemental Agreement and sought the return of the RMB1,900,000. D argued in his defence that he had by conduct duly discharged his duties under the parties’ agreements by seeking to transfer shares in SZ Sorabol to P, and it was P who refused to cooperate in executing the necessary share transfer documents, as a result of which it was impossible for D to transfer the SZ Sorabol shares to P.

15.By a judgment dated 17 May 2017 (“1^st Instance Judgment”), the Qianhai Court held in favour of P and concluded that the 12 Dec Agreement was invalid because it was in breach of certain PRC company law. D was ordered to pay a sum of RMB1,900,000, interest, and court fees of RMB21,900 to P.

16.D lodged an appeal against the 1^st Instance Judgment with the Shenzhen Intermediate People’s Court of Guangdong Province (廣東省深圳市中級人民法院) (“Shenzhen Court”). By a judgment dated 29 December 2019 (“2^nd Instance Judgment”), the Shenzhen Court held:

(1) D’s appeal be dismissed;

(2) the 1^st Instance Judgment be dismissed on the basis that the Qianhai Court was wrong to conclude that the 12 Dec Agreement was invalid. Instead, the Shenzhen Court found that D had no authority to transfer a 50% interest in the Restaurant to P, nor could he legally register a 50% share of the Restaurant under the name of P. This constituted a fundamental breach of the 12 Dec Agreement and entitled P to discharge the contract and claim for a refund of payments made for the share transfer;

(3) D should return to P a sum of RMB1,900,000 (“Judgment Sum”) within 10 days after the 2^nd Instance Judgment takes effect;

(4) in the event that D fails to pay the Judgment Sum within the prescribed period, D should pay double interest on the outstanding sum for the delayed period in accordance with article 253 of The Civil Procedure Law of the PRC;

(5) D should pay court fees of RMB 21,900 for each of the 1^st instance hearing and the appeal hearing; and

(6) that the 2^nd Instance Judgment is a final judgment.

17.The time for D to appeal to the High People’s Court of Guangdong Province (廣東省高級人民法院) was 6 months from the date of the 2^nd Instance Judgment, ie 29 June 2020. D never filed for any appeal.

18.D failed to pay P the Judgment Sum or any sums or interest that were ordered to be paid to P under the 2^nd Instance Judgment.

19.On 11 June 2020, P applied for enforcement against D in Mainland China. By an investigation result notification dated 20 July 2020, P was told that D has no assets available for enforcement in Mainland China.

20.Thus, P commenced the present action in Hong Kong for the enforcement of the 2^nd Instance Judgment.

PROCEDURAL HISTORY

21.P commenced this action by a Writ of Summons and Statement of Claim dated 30 September 2021.

22.D filed his Defence on 1 June 2022.

23.The Statement of Claim was amended on 28 December 2023, and D’s consequential amendments were thereafter made by way of an Amended Defence filed on 8 May 2024.

24.The Statement of Claim was again amended on 17 February 2025. D was given leave to amend pursuant to the Court Note dated 6 February 2025. Crucially, D was allowed a full-scale amendment rather than being confined to the usual consequential amendments. On 19 June 2025, D filed its Re-Amended Defence, which introduced no significant changes.

25.On 13 November 2025, P took out P’s O14 Summons seeking summary judgment against D. The Affirmation of Cho Gwan Jin was filed on the same day in support.

26.On 27 March 2026, D filed his affirmation in opposition and exhibited a draft of the proposed amendments.

27.On 27 March 2026, D filed D’s Amendment Summons, seeking leave to amend his Re-Amended Defence. P filed his 2^nd affirmation on 22 April 2026.

P’S RE-AMENDED STATEMENT OF CLAIM

28.P seeks enforcement of the 2^nd Instance Judgment. It is P’s case that the 2^nd Instance Judgment (1) was delivered by a competent court; (2) rendered a decision for the payment of a fixed sum (ie the Judgment Sum together with the interest and court fees) and (3) was a final judgment conclusive on its merits and there is no avenue of appeal or challenge for D since the time to appeal has long lapsed.

D’S RE-AMENDED DEFENCE

29.It is D’s case that throughout their dealings, the parties’ common intention and understanding was for P to inject capital investment into the Restaurant, and for D to confer on P a share of the interest in the Restaurant (“the alleged Common Understanding”). Such intention and understanding are evidenced by the following:

(1) On around 24 December 2014, SZ Sorabol passed a shareholder’s resolution approving P’s wife (“Choi”) to be the person-in-charge of the Restaurant.

(2) The same was reflected in various local trade registration and revenue documentations.

(3) On or around 31 December 2014, P took over the Restaurant and obtained possession of, inter alia, the keys and safety box in the Restaurant and transferred the bank account, bank books and name chop to Choi.

30.Thus, when SZ Sorabol eventually divested of the other restaurants from its ownership in around 2016, D found a solution to formalise the transaction. On 21 April 2016, the directors of Sorabol passed a resolution approving the transfer of shares in SZ Sorabol to P as to 50%, Na as to 30% and another individual as to 20%.

31.However, in breach of the parties’ mutual understanding and agreement, P refused to accept the shares in SZ Sorabol, despite that D had all along been willing and ready to transfer the same to P.

32.D avers that the 1^st and 2^nd Instance Judgments are unenforceable in Hong Kong because:

(1) they are tainted with procedural irregularities;

(2) the Shenzhen Court failed to take relevant evidence presented by D’s counsel; and

(3) the decisions are contrary to Hong Kong public policy because the real contract breaker was P who refused to complete the steps needed to receive the shares in SZ Sorabol; in permitting a technical point of PRC law to override the parties’ mutual agreement, the two judgments are contrary to the Hong Kong public policy.

D’s PROPOSED AMENDMENTS

33.The proposed amendments can be largely grouped into the following 3 categories.

(1) The alleged Common Understanding and 2015 Oral Agreement

34.There is an extensive new paragraph 12A describing the steps taken by D pursuant to the alleged Common Understanding.

35.It is averred that in or around February or March 2015, it was agreed amongst P, Na and D that (i) P would receive 50% of the shareholding in SZ Sorabol in respect of his 50% (ie RMB1,500,000) investment in the Restaurant, (ii) Na would receive 30% of the shareholding in SZ Sorabol in respect of his 30% (ie RMB900,000) investment in the Restaurant, and (iii) D would be responsible for engaging all necessary legal and administrative services to execute this share transfer (“the alleged 2015 Oral Agreement”).

36.D then carried out certain legal and administrative steps in pursuance of the alleged 2015 Oral Agreement. In around May 2016, D asked P and Na to provide certain documents. But P failed to provide the same to D despite numerous chasers, and he refused to confirm his availability to attend the Shenzhen Registration Office for the purpose of the share transfer.

(2) Additional grounds for unenforceability of the PRC judgments

37.D seeks to make the following new averments on why the 1^st and 2^nd Instance Judgments are contrary to Hong Kong public policy:

(1) The Qianhai Court did not postpone the hearing despite D’s absence on the last day of the trial due to illness and the court continued with the hearing and rendered a judgment unfavourable to D: paragraph 22(e).

(2) The Qianhai Court failed to organize and complete cross-examination of the key evidence submitted by D, including the Sorabol Resolution, the Share Transfer Documents and the Additional Share Transfer Documents (as defined in the draft pleading): paragraph 22(f).

(3) The Qianhai Court unilaterally adopted P’s evidence by taking it as the sole basis for deciding the case: paragraph 22(g).

(4) At the appeal hearing, the presiding judge lost his temper with D’s lawyer by hitting the bench with a gavel, and he failed to maintain neutrality and/or impartiality: paragraph 23.

(5) The PRC judgments violate the principle of res judicata as the 2015 Judgment had already resolved the issue concerning the nature of the 12 Dec Agreement and the Supplemental Agreement between the parties: paragraph 24(e).

(6) The PRC judgments are not enforceable for being an abuse of process of the court, as the subject matter of P’s claims underlying the PRC judgments should and could have been brought at the same time as the proceedings underlying the 2015 Judgment.

(3) Counterclaim

38.In the proposed paragraphs 40 to 43, D seeks to make a counterclaim against P for breach of the alleged 2015 Oral Agreement, and he claims damages to be assessed.

39.As mentioned at the hearing, for the purpose of P’s O14 Summons, I will consider the proposed amendments on a de bene esse basis, assuming for the time being that they are allowed. Depending on the outcome of P’s O14 Summons, I will then return to consider the merits of D’s Amendment Summons.

P’S O 14 SUMMONS

Relevant legal principles

40.There is no dispute between the parties on the well-established legal principles applicable to summary judgment. In Guanghua SS Holdings Limited v Lim Yew Cheng [2022] HKCFI 1052 at §13, Peter Ng J set out a helpful and succinct summary of the proper approach to applications for summary judgments:

(1) The Order 14 machinery works on the basis that if the plaintiff’s application is properly constituted, it is prima facie entitled to judgment unless the defendant shows cause to the contrary.

(2) The mere assertion in an affidavit of a given situation by the defendant responding to an application for summary judgment does not, ipso facto, justify granting leave to defend.

(3) The burden is on the defendant to show a real or bona fide defence or some other reason for a trial. The defendant must satisfy the Court that his evidence is capable of being believed and that on the basis of such evidence, there is a fair or reasonable probability of the defendant having a real or bona fide defence.

(4) In deciding whether there is a fair or reasonable probability of the defendant having a real or bona fide defence, the court does not isolate each factual issue and consider whether it is possible that the defendant’s story on that issue is credible. Rather, the court must look at the whole situation.

(5) In assessing the credibility of the defendant’s factual case, while the court will not embark upon a mini trial on affidavit evidence, the court is not obliged to suspend its critical faculties and assume that the defendant’s evidence is accurate.

(6) If having regard to inherent plausibility, inconsistency with contemporaneous documents and other compelling evidence, the defence is not credible, the court must say so.

(7) If the defendant’s evidence is incredible in any material respect, it cannot be said that there is a fair or reasonable probability that the defendant has a real or bona fide defence.

41.With regard to the recognition and enforcement of a Mainland judgment, according to the learned authors of The Conflicts of Law in Hong Kong (3^rd ed) at §9.016, the onus is on the party seeking enforcement or recognition to plead and prove that the foreign judgment in question is:

(1) final and conclusive on the merits;

(2) between the same parties (or their privies) as those before the Hong Kong court;

(3) determinative of the relevant substantive (non-procedural) issues before the Hong Kong court (in the context of enforcement, this simply means that the foreign judgment provides for the Hong Kong defendant to pay a certain money sum to the Hong Kong plaintiff); and

(4) rendered by a court which had competent jurisdiction in Hong Kong terms.

42.If the above conditions are satisfied, the judgment in question is prima facie enforceable in Hong Kong. The onus then shifts to the party resisting enforcement or recognition to plead and prove that the foreign judgment should be denied enforcement or recognition on any of the following grounds:

(1) the judgment was procured by fraud which is not an abuse of process to raise before the Hong Kong court;

(2) it was obtained by a procedure which offends against Hong Kong notions of substantial justice;

(3) it merely resolves issues to which no regard should be had before a Hong Kong court, being of a public as opposed to private law nature; or

(4) it offends against Hong Kong notions of public policy.

43.The legal principles applicable to summary judgment in the context of proceedings to enforce a foreign judgment at common law were recently applied by DHCJ MK Liu in Beijing Renji Real Estate Development Group Co, Ltd v Zhu Min [2026] HKCFI 197. At §40, his Lordship stated:

“40. The principles concerning summary judgment are well established. A succinct summary can be found in Elegant Mark Investment Ltd v Dai Yumin, in which DHCJ Winnie Tsui (as she then was) said:

‘22. If the claim comes within [Order 14] and the plaintiff has satisfied the preliminary requirements, he will prima facie be entitled to judgment. The burden is then on the defendant to show why judgment should not be entered. To resist summary judgment, a defendant needs to show that there is a triable issue or an arguable defence.

23. Summary judgment is only for clear cases. It ought not to be applied in cases where there are serious material factual disputes, or a difficult point of law not fit for summary determination, unless it is obvious that the defence put forward is “frivolous and practically moonshine.’”

44.The parties agree that these are the applicable principles, but they differ on how they should be applied to the circumstances of this case.

Whether the 2^nd Instance Judgment is prima facie enforceable

45.The relevant judgment here is the 2^nd Instance Judgement, as the 1^st Instance Judgment has been dismissed and superseded by the 2^nd Instance Judgment.

46.There appears to be no dispute from D that: (i) the 2^nd Instance Judgment was between the same parties as the current parties in these proceedings, (ii) the 2^nd Instance Judgment was rendered by a court which had competent jurisdiction, and (iii) it is determinative of the relevant substantive issues before the Hong Kong court in the sense that it provides for D to pay a certain money sum to P.

47.The question here is whether the 2^nd Instance Judgment is final and conclusive.

48.P argues that it is final and conclusive for the following reasons:

(1) It is expressly stated in the 2^nd Instance Judgment that it is a final judgment (本判决为终审判决).

(2) P has engaged a PRC lawyer, Mr Jiazhuo Chen (“Mr Chen”), to render expert opinion on the validity and enforceability of the 2^nd Instance Judgment. He opined that it is final and conclusive because:

(a) The PRC justice system is a “two-instance final judgment” system.

(b) The 2^nd Instance Judgment is final, effective, and enforceable immediately upon it being served on the parties.

(c) The exceptional retrial procedure does not suspend the execution or undermine the finality of the 2^nd Instance Judgment.

(d) The retrial procedure is time-barred, and it is highly unlikely that it will be engaged now.

49.It is further argued by P that the mere theoretical possibility of protest or retrial does not strip the judgment of finality: Bank of China Ltd v Yang Fan [2016] 3 HKLRD 7 at §§53-54, per To J.

50.Accordingly, P submits that his case is properly constituted. Unless there are credible defence which raised a triable issue, P should prima facie be entitled to judgment.

51.D, on the other hand, argues that the 2^nd Instance Judgment is neither final nor conclusive on the merits for the following 3 reasons. In this connection, D relies on the expert opinion from a PRC lawyer, Mr Zhang Song-hu (“Mr Zhang”), to support his arguments.

52.First, it is said that there were various material procedural irregularities in the rendering of the 2^nd Instance Judgment which “are all statutory grounds for retrial stipulated in the Civil Procedure Law of the People’s Republic of China...sufficient to reverse the original judgment”.

53.Second, D argues that the 2^nd Instance Judgment violates the principle of res judicata and public policies of the PRC, as it constitutes a retrial and negation of the facts established by the 2015 Judgment.

54.Third, D relies on P’s statement in his 2^nd Affirmation that the alleged 2015 Oral Agreement was “not the subject of the Mainland Judgments” and he argues that the 2^nd Instance Judgment is not final and conclusive on the merits, as the alleged 2015 Oral Agreement arises from the same factual matrix underlying the 2^nd Instance Judgment but the PRC court failed to consider the determine this issue.

55.It seems to me that in advancing these 3 grounds, D is confusing the concept of “final and conclusive” with that of “against public policy”. There can be no question that the two concepts are distinctively different, and D’s grounds are more properly concerned with the second-stage question of whether the 2^nd Instance Judgment is impeachable on public policy grounds.

56.In Sunsco International Holdings Ltd v Lin Chunrong [2025] HKCFI 5238, DHCJ Jonanthan Wong considered the issue of whether a judgment made by a Mainland Chinese court should be regarded as final and conclusive for the purpose of deciding whether that judgment can be enforced by the common law route in Hong Kong. Having reviewed the relevant authorities on the issue, the learned judge said:

“12.6 … in my judgment, the Retrial Procedure per se does not have the effect of rendering the Mainland judgment not final and conclusive.

…

13.1 … Since I have decided that the Retrial Procedure per se does not have the effect of rendering a Mainland judgment not final and conclusive, I need to further consider under what circumstances would a Mainland judgment be considered not final and conclusive by reason of the Retrial Procedure.

13.2 In my view, the paramount consideration is the likelihood of a retrial being ordered under the Retrial Procedure. This is a matter to be demonstrated by factual evidence or expert evidence or a combination thereof ……” (emphasis added)

57.This approach was adopted by DHCJ MK Liu in Beijing Renji (supra) at §43.

58.Thus, the relevant consideration here is the likelihood of a retrial being ordered under the retrial procedure.

59.According to Mr Chen, a cornerstone of the PRC civil justice system is the “two-instance final judgment” system established by Article 10 of the PRC Civil Procedure Law. This system is designed to ensure judicial finality. In this case, the 2^nd Instance Judgment was issued by the Shenzhen Court, acting as the second-instance (final appellate) court. Under Article 182 of the PRC Civil Procedure Law, judgments of the second-instance court are final. The finality is further evidenced by the last sentence of the 2^nd Instance Judgment which states “本判决为终审判决” (This judgment is a final judgment). Under PRC law, such a final judgment becomes legally effective and enforceable immediately upon being served on the party. Mr Zhang does not appear to dispute any of these.

60.In his expert opinion, Mr Chen further states the following in relation to the retrial procedure:

(1) The existence of a separate and exceptional retrial procedure does not detract from the judgment’s immediate finality and enforceability. This is confirmed by Article 210 of the PRC Civil Procedure Law, which provides that an application for a retrial does not suspend the execution of the original judgment.

(2) The retrial procedure, also known as the procedure for trial supervision, is fundamentally different from an appeal. An appeal is a party’s right, while a retrial is a remedy for correcting substantive and manifest errors of law or fact in a legally effective judgment. Therefore, an application for retrial does not automatically suspend the execution of the original judgment and the judgment remains enforceable unless and until a court explicitly rules to suspend it, which is rare.

(3) There are essentially 3 pathways through which a retrial can be initiated.

(a) Retrial application by a party to the original case on one of the conditions listed in Article 211 of the PRC Civil Procedure Law. There is a strict 6-month time limit for a party to file a retrial application, calculated from the date on which the judgment becomes legally effective. This time-limit can be extended only under 4 specific circumstances, such as discovering that evidence was forged or that a judge was bribed.

(b) Retrial initiated by a People’s court that rendered the original judgment or a high court when a “definite error” in the judgment is discovered.

(c) Protest by the People’s Procuratorate, which can only be triggered after a party’s own retrial application has been rejected by the court.

61.Again, Mr Zhang does not seem to dispute any of the above rules or Mr Chen’s interpretation in relation to the retrial procedure.

62.Having considered the parties’ respective expert opinion and the facts of the present case, I am of the view that it is highly unlikely that a retrial will be ordered under the retrial procedure. My reasons are as follows.

63.Firstly, the 2^nd Instance Judgment was rendered on 29 December 2019. The 6-month period for D to apply for a retrial expired in around mid-2020. There is no public record or any evidence that D ever filed for a retrial within this period (or indeed any period). I agree with Mr Chen that the probability of an extension of time is practically non-existent, as there is no suggestion of any fraud, forged evidence or judicial corruption in the handling of the case.

64.Secondly, as regards retrial initiated by a People’s court, according to Mr Chen, it is not typically initiated without some form of external trigger, such as a party’s petition after their formal application deadline has passed. I agree with Mr Chen that it is extremely unlikely that the PRC court would proactively initiate a retrial of a private commercial dispute years after the fact and in the absence of any petition from a party.

65.Thirdly, on the last pathway of protest by the People’s Procuratorate, since D never applied to the court for a retrial within the statutory time limit, he is procedurally debarred from invoking this method.

66.Fourthly, it is noteworthy that Mr Zhang, in contending his view that the 2^nd Instance Judgment is not final and conclusive, did not touch on any of the above laws and their application. His main thesis seems to be that the 2^nd Instance Judgment violates the principle of res judicata in the PRC[1] and the alleged “procedural illegality acts are all statutory grounds for retrial stipulated in the Civil Procedure Law of the [PRC], which are sufficient to reverse the original judgment.”[2] But he did not address the fact that the time for filing a retrial application has long passed. He also did not discuss whether, and if so how, D could overcome the procedural hurdles to file a retrial application about 6 years out of time.

67.Fifthly and significantly, despite D’s complaints that the PRC judgments are tainted with procedural irregularities and unfairness, he has never sought to appeal the 2^nd Instance Judgment or apply for a retrial in the past 6 years. No explanation has been proffered for this omission. If there were any substance to D’s allegations, he would reasonably be expected to have lodged an appeal or applied for a retrial long ago. His failure to do so does suggest that these allegations are raised now solely to delay the execution of the 2^nd Instance Judgment.

68.In conclusion, I take the view that the likelihood of a retrial is extremely low or practically non-existent. The 2^nd Instance Judgment is final and conclusive, and it is prima facie enforceable in Hong Kong.

Any arguable defence that enforcement should be denied

69.In his affirmation in opposition, D raised several grounds on which he argues that the 2^nd Instance Judgment is impeachable on public policy grounds. In the skeleton submissions and at the hearing, Ms Ho has narrowed down D’s objection to three main grounds.

(1) Offends substantial justice?

70.First, Ms Ho refers to the principle that a foreign judgment may be impeached if it offends the Hong Kong court’s views of substantial justice, or if it is so wrong as to be evidence of bias. Substantial justice requires that (1) notice is given to the litigant that the court is about to proceed to determine the rights between him and the other litigant and (2) having given him that notice, the litigant is afforded an opportunity of substantially presenting his case before the court: DP World Djibouti Fzco & Ors v China Merchants Port Holdings Company [2025] HKCFI 6320 per Hon Mimmie Chan J at §71(1), 72(2).

71.Applying these principles, Ms Ho argues that there are reasons to believe that the 2^nd Instance Judgment offends the Hong Kong court’s view of substantial justice and it is also tainted with bias. She relies on the following matters:

(1) D was not provided with Korean translation before the Qianhai Court and the Shenzhen Court. This was in breach of Articles 11 and 12 of the PRC Civil Procedure Law, which provides that parties have the right to conduct civil litigation in their own national language.

(2) D was deprived of his right to appear on the last day of the hearing before the Qianhai Court, although he submitted medical certificates to justify his absence. The court did not examine D’s “just cause” for not appearing in court, and continued the hearing without postponing the same, thereby depriving his right to present his case.

(3) In the Shenzhen Court, the presiding judge lost his temper with D’s lawyer and struck the court table with a gavel. Mr Zhang opines that this act “seriously violated the basic requirements of the Code of Conduct for Judges regarding the neutrality and impartiality of judges…and undermined the neutrality and fairness of the litigation procedure”.

(4) Both courts failed to organise cross-examination of key evidence adduced by D, including the Sorabol Resolution, the Share Transfer Documents, and the Additional Share Transfer Documents. The courts also failed to comprehensively examine the same in any written judgment. This breached Article 71 of the PRC Civil Procedure Law and Article 105 of the Judicial Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China.

(5) Both courts took the initiative to make a substantive determination on the validity of the 12 Dec Agreement and Supplemental Agreement, even though P had withdrawn his litigation claim of “rescinding the equity transfer letter of intent”. This breached Article 13 of the PRC Civil Procedure Law on the principle of disposition.

72.In my view, there is no merit in any of the above contentions.

73.In relation to the alleged lack of Korean translation, there is no suggestion that D was prohibited from engaging a Korean translator. He is the author of his own misfortune if he chose not to have a translator. More importantly, there is no dispute that D was legally represented throughout the PRC proceedings and there is no suggestion that that he was unable to give instructions due to any language barrier.

74.In relation to the alleged deprivation of right to appear in the last day of the hearing, again, D was legally represented throughout the proceedings. According to Mr Chen, under PRC law, communication through an “Ad Litem Agent” (诉讼代理人), such as a lawyer, satisfies the requirements of due process. Since D was legally represented, PRC law allows a party to be absent from the last day of the trial as long as their legal representatives are present. It is now alleged by Ms Ho that the court’s failure to postpone the hearing deprived D of the opportunity to appear in court, respond to the action, and make a final statement. But there is no suggestion that his PRC lawyers were unable to do those things on his behalf due to his absence.

75.There is also no merit in the suggestion that simply because the presiding judge in Shenzhen Court struck the court table with a gavel, he had lost his temper and violated the fundamental requirements of neutrality and impartiality.

76.As regards the alleged failure by the PRC court to thoroughly examine D’s evidence, it is clear that the Shenzhen Court specifically listed out the evidence provided by D in support of his allegation that P had failed to cooperate in the share transfer:

“申洪雨主张巳经将金光华分店的实际管理权移交给曹宽镇并要求曹宽镇办理股权转让手续但曹宽镇不配合未办成，提交的相关证据如下：1、（证据4、证据6、证据7）2016年4月15日，萨拉伯尔（广东）有限公司董事会作出决议 […] 2、（证据5）申洪甭曾发电子邮件给曹宽镇要求配合办理股权转让事宜，曹宽镇对电子邮件的真实性不予认可；申洪雨另主张向曹宽镇邮寄过律师函，但相关邮单未显示曹宽镇巳答收。3、（证据 8）深圳新罗园餐饮管理有限公司变更商事主体登记的相关资料，证明只要股权受让方守约守信可以很快完成转让及登记。4、（证据9）(2015) 深前法涉外初字第337号民事判决书，申洪雨认为曹宽镇弄虚作假将本案的股权转让款以借款名义起诉被驳回诉讼请求。5、（证据10）申洪雨提交了一页内容不完整未经翻译的复印件，用以证明曹宽镇太太在香港注册萨拉伯尔（中国）有限公司，试图以该公司名义持股新罗宝公司。6、（证据11）申洪雨与案外人罗振东签订的相关合作、退股协议及罗振东出具的 一 份文件 […] 7、（证据 12）申洪雨提交了《金光华装饰费收支现况》及《个人账户交易明细清单》，证明申洪雨收取曹宽镇等人的股权转让款后全部用于金光华店的装修，曹宽镇均不予认可。8、（证据13）何小萍个人出具的《收据》，证明申洪雨巳向何小萍缴纳股权转让代理费，因曹宽镇违约拒绝办理故未完成。9、（证据14）金光华韩国餐厅董事曹宽镇、罗振柱、罗宝懿、蔡健荣、崔支馨的名片，证明受让股东全部巳实际管理餐厅。10、庭审中，申洪雨申请了两名证人到庭。”[3] (emphasis added on the documents provided by D)

77.During the hearing before the Shenzhen Court, D was allowed to produce additional evidence, and such evidence was also listed out in the 2^nd Instance Judgment:

“申洪酉向本院提交如下证据：l、2014年6月10日《项目合作经营协议》（合同主体是金光华分店与曹宽镇）；2、2014年6月10日《项目合作经营协议》（合同主体是金光华分店与罗振柱）；3、2014年6月10日《项目合作经营协议》（合同主体是金光华分店和罗振东（又名罗宝懿）；4、会计专业意见书及《金光华分店投资资金明细表》； 5、2014年1-12月《会计报表、总分类账、明细分类账》；6、装修合同及装修费支付明细；7、装修前后对比图片；8、电子邮件（曹宽镇及其妻子崔支馨发给申洪雨、罗振东、罗振柱关于经营金光华分店的所有事务记录）；9、深圳市市场监督管理局商事主体变更信息；10、2016 年第697号认证书及2014年12月12日签订的《合意书》；11、2016年第696号认证书及2014年12月22日签订的《合意书》；12、曹宽镇2016年3月8日的证明及起诉状；13、2015年10月12日黄苗笋2015年10月12日起诉状；14、(2015) 深前法涉外初字第337号民事判决书。 […] 15. 变更银行账户申请书、变更银行印鉴申请函及相关交易记录。[…] 16. (2015) 深前法涉外初字第337号民事判决书。”[4] (emphasis added)

78.In Guangzhou Green-Enhan Bio-Engineering Co Ltd v Green Power Health Products International Co Ltd [2004] 3 HKLRD 223 at §2(c) and 2(d), Lam J (as he then was) held that Hong Kong court accepts the judgment of the courts in the Mainland as evidence of the law in Mainland, and although a foreign judgment may not contain specific reference to a particular point, so long as the court is satisfied that the point could not have escaped the attention of the foreign court or the parties, the foreign court should be regarded to have decided that point.

79.Other than bare allegations, D produced no evidence suggesting that the PRC court did not consider his evidence. On the contrary, the very documents that he claims to have been ignored were in fact listed and specifically mentioned in the 2^nd Instance Judgment. According to Mr Chen, it is the standard practice of the PRC courts to list evidence in this manner to demonstrate that it has been duly considered. In any event, the excerpts cited above demonstrate that the Shenzhen Court not only listed D’s evidence but also discussed the parties’ position with respect the evidence. In my view, there is no triable issue that D’s evidence could have escaped the attention of the Shenzhen Court, and it should be regarded as having considered such evidence.

80.Finally, and critically, D’s complaints in these proceedings are based on his assertions that the Shenzhen Court breached certain civil procedure rules under PRC law. If that were the case, the proper remedy would have been to appeal that decision or apply for a retrial. It is undisputed that D has done neither.

81.It is trite that if there is an effective remedy against injustice within the foreign procedural system, by way of appeal or otherwise, then failure to exercise it may debar the adversely affected party from complaining of the matter in Hong Kong. In Adams v Cape Industries Plc [1990] 1 Ch 433, at 570C:

“Since the ultimate question is whether there has been proof of substantial injustice caused by the proceedings, it would, in our opinion, be unrealistic in fact and incorrect in principle to ignore entirely the possibility of the correction of error within the procedure of a foreign court which itself provides fair procedural rules and a fair opportunity for remedy. The court must, in our judgment, have regard to the availability of a remedy in deciding whether in the circumstances of any particular case substantial injustice has been proved. However, the relevance of the existence of the remedy and the weight to be attached to it must depend on factors which include the nature of the procedural defect itself, the point in the proceedings at which it occurred and the knowledge and means of knowledge of the defendants of the defect and the reasonableness in the circumstances of requiring or expecting that they made use of the remedy in all the particular circumstances.” (emphasis added)

82.In the present case, there is no question that the PRC legal system provides effective and fair procedural rules, as well as a fair opportunity for remedy to any aggrieved party through an appeal or retrial process. There was nothing to prevent D from pursuing such remedies. Given that he has been legally represented throughout, it cannot reasonably be suggested that he lacked the means or the knowledge to do so. It is disingenuous for D to sit on these complaints when P seeks to enforce the 2^nd Instance Judgment, having taken no steps to rectify the alleged substantial injustice over the past 6 years and no explanation is proffered for his inaction.

83.In my judgment, therefore, there is no credible defence that the 2^nd Instance Judgment offends the Hong Kong court’s view of substantial justice.

(2) Abuse of process?

84.D’s second ground is based on the principle that a foreign judgment may be impeached if it was obtained in a manner that would be considered an abuse of process in Hong Kong: Hong Kong Huihuang Industrial Company Limited v Allahabad Bank (unreported, CACV 144/2016, 4 Oct 2016) per Hon Kwan JA at §§49-50. Ms Ho argues that while Hong Kong Huihuang concerned the application of res judicata in its narrower sense, the Court of Appeal did not preclude the application of res judicata in its wider sense. The essence of the doctrine of res judicata in the wider sense (or Henderson v Henderson abuse) is that generally a party should not be permitted to raise in subsequent proceedings matters which that party could and should have raised in earlier proceedings.

85.In Ko Hon Yue v Chiu Pik Yuk & Ors (2012) 15 HKCFAR 72 at §83, Ma CJ referred to the following facets of the doctrine of res judicata in the wider sense:

“(1) The starting point is to recognise that the doctrine is founded on an abuse of process. As Lord Wilberforce said in Brisbane City Council v A-G for Queensland, “it ought only to be applied when the facts are such as to amount to an abuse otherwise, there is a danger of a party being shut out from bringing forward a genuine subject of litigation”: (p.425)

(2) This concern (that a party ought not lightly to be deprived of the right to have serious matters litigated) was echoed by Lord Millett in Johnson v Gore Wood & Co: (p.59D–G)

(3) It must therefore be essential when striking out a claim on this basis (and thus preventing a litigation of that claim) that an abuse is found to exist in seeking to raise in subsequent proceedings claims or issues which could and should have been raised in earlier proceedings. This abuse will usually take the form of the other party being “vexed” (or in some cases, the terms “oppressed”, “unjustly harassed” or “unjustly hounded” are used) by the subsequent set of proceedings: Johnson v Gore Wood & Co, 31A–B…

(4) The abuse can also take the form of the administration of justice being brought into disrepute: see Chiang Lily, 256D–G ([58]) referring to Hunter v Chief Constable of the West Midlands Police [1982] AC 529…

(5) In examining aspects such as abuse, the court is concerned with balancing interests: not just those of the litigants before it, but also taking into account the other interests involved in the administration of justice. It is important therefore here to emphasise that when the court is dealing with the Henderson v Henderson type of abuse, it is not looking at an absolute bar to litigation such as issue estoppel or cause of action estoppel. On the contrary, in considering this type of abuse, the court is required to assess a number of factors and balance competing interests…” (emphasis added)

86.D argues that the 2^nd Instance Judgment should not be enforced because it was in breach of the PRC principle of res judicata under Article 247 of the Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law.

87.It is further argued that the 2^nd Instance Judgment is impeachable on the ground that it was obtained in a manner that would be considered a Henderson v Henderson abuse under Hong Kong law:

(1) It was P who instructed his employee, Huang, to commence the 2015 Action against D. At all material times, P was aware of the 2015 Judgment, and he even issued a complaint to support the action.

(2) In the 2015 Judgment, the PRC court found, inter alia, that Huang merely paid RMB800,000 on P’s behalf pursuant to an “equity transfer dispute” between P and D. This “equity transfer dispute” was precisely the subject matter of the subsequent action brought by P, which resulted in the 1^st Instance Judgment and the 2^nd Instance Judgment, the latter of which P now seeks to enforce.

(3) There is no reason why P’s complaint concerning the legal validity of the 12 Dec Agreement and Supplemental Agreement could not have been brought in the 2015 Action. The 2 agreements had already been long concluded when the 2015 Action was commenced on 12 October 2015. Indeed, the 12 Dec Agreement and Supplemental Agreement were considered by the PRC court in the 2015 Action.

(4) There is no reason why P’s complaints before the Qianhai Court and Shenzhen Court should not have been dealt with in the 2015 Action.

(5) P used the 2015 Action to “test the waters” by packaging the 12 Dec Agreement and Supplemental Agreement as a loan arrangement between Huang and D. Upon failing in that attempt, P brought the 1^st Instance Action against D to recover the same subject matter of the 2015 Action, ie the RMB800,000, which is part of the RMB1,900,000 pursued by P in the 1^st Instance Action.

(6) D should not be vexed by the subsequent actions in circumstances where P’s complaint could and should have been brought in the 2015 Action. It would be an abuse of the Hong Kong Court’s process to enforce the 2^nd Instance Judgment for this reason.

88.First of all, I do not think it is open to this court to consider whether the 2^nd Instance Judgment was in breach of the principle of res judicata under the relevant PRC law. The 2015 Judgment was submitted by D as part of his evidence before the Qianhai Court, with his argument that P had framed his share transfer payments as loans but such claims were dismissed in the 2015 Action.[5] In the 2^nd Instance Judgment, the Shenzhen Court also referred to the 2015 Judgment and noted D’s same argument.[6] As such, both the Qianhai Court and the Shenzhen Court were clearly aware of the 2015 Action and D’s position in relation to it. The Shenzhen Court was also aware of D’s argument that the two actions concerned the same subject matter of the share transfer payments. Yet neither of them held that P was debarred from bringing his claims on the ground of res judicata under PRC law.

89.Moreover, I note that on page 6 of the 2015 Judgment, after concluding that there was no factual or legal basis to establish a private loan agreement, the Qianhai Court stated, “本案涉及的股权转让纠纷，可另案解决”. Thus, the Qianhai Court had expressly anticipated and permitted the relevant parties to issue separate proceedings for the purpose of resolving the dispute related to the share transfer, and there was no issue of res judicata.

90.It is well established that in an action brought to enforce a foreign judgment, the defendant is not permitted to reopen issues of either fact or law which have been decided against him by the foreign court, save and except where there is an allegation that the foreign judgment was obtained by fraud: WFM Motors Pty Ltd v Malcolm Maydwell (unreported, CACV 148 & 187/1995, HCMP 1778/1995, 7 December 1995) at p 8 per Ching JA; Owens Bank Ltd v Bracco [1992] 2 AC 443 at 484B per Lord Bridge. By the same token, in the context of an application for summary judgment to enforce a foreign judgment, it is no defence to say that the foreign court was wrong: Nintendo of America Inc v Bung Enterprises Ltd [2000] 2 HKC 629 at 637B per Recorder Edward Chan SC. By reason of the matters discussed in the preceding two paragraphs, it is simply not open to this court to review whether the PRC courts have properly applied the principle of res judicata under the relevant PRC law. To do so would effectively allow D to re-litigate the issue in the Hong Kong court and treat the present action as an appeal against the 2^nd Instance Judgment.

91.Moreover, I also cannot accept D’s submission that the 2^nd Instance Judgment was obtained as an abuse of process in the wider sense of res judicata under Hong Kong law. The 2015 Action was based on certain alleged loans extended on 9 June, 16 June and 10 October 2014 in the total sum of RMB 800,000. The issue in dispute was whether Huang’s payments were loans or payments for a share transfer.[7] On the other hand, the 1^st Instance Action concerned a share transfer dispute involving an investment amount of RMB 1.9 million. The underlying agreements took place in December 2014. The issues in dispute were: (1) the validity of the two underlying agreements and its consequence; (2) whether D had in practice handed over the management of the Restaurant to P; and (3) whether there should be a refund of P’s payments for the share transfer.[8]

92.Thus, even assuming that Huang was acting on behalf of P in the 2015 Action, the two actions concerned entirely different subject matters and issues in dispute. The former concerned the nature of payments in a smaller total sum, whereas the latter concerned the validity of two written agreements involving a much larger total sum. Had P brought forward his claim concerning the validity of the 12 December Agreement and the Supplemental Agreement in the 2015 Action, it would have required him and Huang to maintain mutually exclusive or internally inconsistent cases against D. Thus, I do not consider that P “could or should have” raised his claims in the 2015 Action. Given the Qianhai Court’s findings in the 2015 Judgment, it may reasonably be said that Huang (or P) erred in characterizing the RMB 800,000 as loans. However, it is not an abuse of process for P to adopt the court’s ruling in the 2015 Judgment and commence the 1^st Instance Action to seek a refund of his payments (which in any event was expressly permitted by the court in the 2015 Judgment). To hold otherwise would in effect be depriving P from bringing forward a genuine subject of litigation.

93.I am therefore not persuaded there was an abuse of process. There is no triable defence that enforcement should be denied on this ground.

Whether order for enhanced interest rate unenforceable in Hong Kong

94.The 2^nd Instance Judgment contains an order that if D fails to fulfil his payment obligation within 10 days after the Judgment became effective, he would be liable for double interest under Article 253 of the PRC Civil Procedure Law. In this action, D argues that such an order is penal under Hong Kong law and unenforceable as per Hung Fung Enterprises Holdings Ltd v Agricultural Bank of China [2012] 3 HKLRD 679, a Court of Appeal decision on another provision with the same wording.[9]

95.P relies on Mr Chen’s opinion that Article 253 of the PRC Civil Procedure Law is not penal, but rather “a civil compensatory measure designed to incentivize timely compliance with judgments … analogous to judgment debt interest in Hong Kong”. P also relies on Hangzhou Jiudang Asset Management Co Ltd v Kei [2022] EWHC 3265, where the English court held that Article 253 is of a deterrence nature, is pursuing a legitimate aim, does not offend English public policy, and is justifiable. Mr Chin further seeks to distinguish Hung Fung from the present case by pointing out that the double interest in Hung Fung was calculated based on a contractual interest but that in the present case was ordered by the Shenzhen Court.

96.Although Hung Fung was concerned with Article 229 of the PRC Civil Litigation Law (as opposed to Article 253 of the PRC Civil Procedure Law), it appears to be undisputed that the two articles share the same wording. In that case, the Court of Appeal was also concerned with a PRC court order for double interest in the event that the defendant failed to pay the judgment sums within 10 days of the judgments coming into effect (though the interest rate was calculated with reference to a contractual interest). As such, it is at least arguable that the Court of Appeal decision is binding on this court. In the circumstances, I think there is a triable issue as to whether the order for double interest in the 2^nd Instance Judgment is penal and therefore unenforceable in Hong Kong.

97.Moreover, I noticed that while the 1^st Instance Judgment contains an order for payment of interest at a certain lending rate of the People’s Bank of China,[10] the 2^nd Instance Judgment does not contain a similar order. Since the 1^st Instance Judgment was dismissed by the Shenzhen Court, arguably that interest order was overruled together with the rest of the 1^st Instance Judgment and it is therefore unclear what interest rate is used to calculate the double interest under the 2^nd Instance Judgment.

98.In view of the matters discussed above, it is appropriate that the court should hear further evidence and submissions on the issue of interest. Accordingly, D is granted unconditional leave to defend P’s claim for double interest under the 2^nd Instance Judgment.

99.However, I agree with Mr Chin’s submission that this part of the Judgment is severable and should not affect P’s claim for the other sums under the 2^nd Instance Judgment. Summary judgment should be entered in favour of P for the payment of RMB1,900,000 and PRC court fees in the total sum of RMB43,800.

D’S AMENDMENT SUMMONS

100.Given my conclusion on P’s O14 Summons, strictly speaking it is unnecessary for me to consider D’s Amendment Summons. I only wish to add a few words on my observations regarding D’s proposed amendments in relation to the alleged 2015 Oral Agreement and the new counterclaim. In my view, they should not be allowed regardless of whether P succeeds in his application for summary judgment, for it would be an abuse of process for D to reopen the issues that either had been dealt with by the PRC courts, or they could or should have been raised before the PRC courts.

101.The alleged 2015 Oral Agreement concerned D’s allegation that in around early 2015, D came to know that SZ Sorabol was going to divest itself of the other branch restaurant and the Restaurant would then become the only business held under SZ Sorabol. As D was still looking for a method to recognise P’s and Na’s respective interest in the Restaurant, the parties allegedly agreed to a new proposal whereby D would directly transfer shares in SZ Sorabol to P and Na as to 50% and 30% respectively, and D would be responsible for engaging all necessary legal and administrative services to execute this share transfer. It is now alleged by D that the PRC courts failed to consider and determine this issue and hence the 2^nd Instance Judgment is not final and conclusive.

102.The term “2015 Oral Agreement” or its Chinese equivalent was not specifically mentioned as part of D’s case in the 1^st and 2^nd Instance Judgments. D also did not have a counterclaim in the PRC actions. However, it is clear from the PRC judgments that D had put forward the key elements of the alleged 2015 Oral Agreement, namely (1) he would directly transfer shares in SZ Sorabol to P to reflect P’s investment in the Restaurant; (2) he had engaged all necessary legal and administrative services to execute this share transfer; and (3) P failed to cooperate to sign the necessary documents. Both the Qianhai Court and the Shenzhen Court have dealt with these contentions[11] and yet they both held in favour of P.

103.It follows that if D had raised the substance of this alleged 2015 Oral Agreement before the PRC courts, there is an issue estoppel and he is absolutely debarred from relitigating the matter here in Hong Kong. On the other hand, if D did not specifically raise this alleged 2015 Oral Agreement in the PRC courts, then he could have and should have done so, and it would be a Henderson v Henderson abuse for him to now raise the issue in Hong Kong.

104.In her submissions, Ms Ho seizes upon P’s statement in paragraphs 36 and 37 of his 2^nd affirmation that the alleged 2015 Oral Agreement and related matters “concerned a different alleged arrangement which have been reached later in time and in a different form” and the proposed counterclaim “would at most be from the issue presently before this Honourable Court”. Ms Ho argues that even P admits that there is a live factual issue between the parties as to when and how the 2015 Oral Agreement was reached.

105.As I see it, P’s statement is taken out of context. It should be read in conjunction with paragraphs 33 to 35 of his 2^nd affirmation, where he stated:

“33. The Defendant now seeks to introduce, through a proposed Re-Re-Amended Defence and Counterclaim, a new narrative about a so-called ‘2015 Oral Agreement’ relating to the transfer of shares in a company called [SZ Sorabol], and to rely on this as the basis of a new counterclaim for alleged time and costs.

34. These events should have been before and be adjudicated in the PRC Courts.

35. I am advised and believe that this alleged 2015 Oral Agreement was not pleaded in the original Defence and in the earlier Re-Amended Defence. The Defendant is now raising this alleged oral agreement for the first time at a very late stage, in conjunction with a new counterclaim, and attempting to re-litigate the matter here.”

106.Without embarking on a mini trial on the affirmation, it is immediately obvious that there is no admission on the part of P as contended by Ms Ho. According to P, the alleged 2015 Oral Agreement is a new narrative being put forward by D for the first time, and it ought to have been raised before the PRC courts.

107.In any event, even if this court adopts Ms Ho’s contention in relation to P’s “admission”, the fact remains that even on D’s case, the alleged 2015 Oral Agreement arose from the same share transfer dispute that led to the 2^nd Instance Judgment. It would be a Henderson v Henderson abuse if D is allowed to litigate the matter in this court.

CONCLUSION

108.P’s Amendment Summons is allowed. Costs of the summons be to D forthwith, to be taxed if not agreed.

109.D’s Amendment Summons is dismissed. D shall forthwith pay P’s costs of and incidental to D’s Amendment Summons, with certificate for one counsel, to be taxed if not agreed.

110.In respect of P’s O14 Summons, P has substantially prevailed in his application save for the claim for double interest, which I allocate to account for 5% of the costs. I make the following orders:

(1) Final judgment be entered against D in favour of P for:

(i) The judgment sum of RMB1,900,000 (or its Hong Kong dollar equivalent calculated at the exchange rate prevailing at the time of payment); and

(ii) The court fees ordered by the PRC courts in the total sum of RMB43,800 (or its Hong Kong dollar equivalent calculated at the exchange rate prevailing at the time of payment).

(2) D be given unconditional leave to defend P’s claim for double interest in pursuance of the order under the 2^nd Instance Judgment;

(3) D shall pay 95% of P’s costs of and incidental to this Summons, with certificate for one counsel, to be taxed if not agreed;

(4) The remaining 5% of the costs of and incidental to this Summons shall be costs in the cause; and

(5) Unless any party applies to vary the costs order nisi in paragraphs (3) and (4) above within 14 days from the date hereof, the same shall become absolute.

111.I thank counsel for their assistance.

Mr Edward Chin and Mr Arthur Wan, instructed by Heyman Tang & Wong, for the plaintiff

Ms Nicola Ho, instructed by Lee Law Firm, for the defendant