Chen Jian Feng v. Bright Winner Ltd and Others
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HCMP 2219/2025, [2026] HKCFI 4603 HCMP 2219/2025 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO. 2219 OF 2025 ________________________
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________________________ AND HCMP 2220/2025 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO. 2220 OF 2025 ________________________
________________________ BETWEEN
________________________ AND HCMP 2221/2025 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO. 2221 OF 2025 ________________________
________________________ BETWEEN
________________________ (Heard Together)
________________________ D E C I S I O N ________________________ I. INTRODUCTION 1.During the hearing on 20 January 2026 (the “January Hearing”), in the absence of the 1st, 2nd and 3rd Defendants, in each set of the proceedings, I granted an order of inspection and production of certain documents of the subject company (collectively, the “Companies”) in each of the proceedings under sections 374 and 375 of the Companies Ordinance (Cap. 622) (the “Order”). On 16 February 2026, in each of the proceedings, the 2nd Defendant (“Qiu”) filed Summons (the “Setting Aside Summons”) to set aside the Order on the ground that the Court did not have jurisdiction over him because he was out of jurisdiction when the Originating Summonses filed on 19 November 2025 (the “Originating Summonses”) were served. II. SUBMISSIONS TO THE JURISDICTION 2.There is no dispute that Qiu was out of jurisdiction when the Originating Summonses were served. It does not matter whether there was any forwarding arrangement of documents sent to Qiu’s Hong Kong address to Qiu in the Mainland. Therefore, the Plaintiff’s application by way of Summons filed on 23 July 2026 (the “Plaintiff’s Evidence Summons”) to file a short affirmation about this arrangement should be dismissed on the ground of irrelevance, with costs to Qiu. 3.The real question is whether Qiu submitted to the jurisdiction when the Orders were made. If he did, the Orders were regular, and should be set aside only if there were real prospects of success in the defence. If he did not, the Orders were irregular, and should be set aside as a matter of right without the need to consider the underlying merits. A. Legal principles 4.The legal principles for determining whether a person submits to jurisdiction are well established. In Chan Hon v Bayer Healthcare Limited [2020] HKCA 1090 at §4.3, Cheung JA, giving the judgment of the Court of Appeal (consisting Lam VP and Cheung JA), summarised the principles as follows:-
5.Thus, the test is an objective bystander’s test taking into account all the relevant circumstances. This involves an evaluative assessment. No one factors should be mechanically regarded as overriding. In one context, it may be; in another, it may be not. Therefore, with respect, I disagree with Mr Kwan, counsel for the 2nd Defendant’s submissions that taking of any step not procedurally or statutorily provided can never be regarded as submissions to the jurisdiction. His reliance on Swiss Life AG v Moses Kraus [2015] WEHC 2133 (QB), where the Queen’s Bench was bound by the US Court’s finding that a letter sent to the US Court was not regarded as a step in the proceedings there and as playing any role in the US proceedings, does not advance his position, because no reasoning as to why the US Court reached this conclusion under the US law was provided. At most, this case can only serve as an example where a letter has not been regarded as a step in a Court proceeding. The question whether certain step or steps constitute submission to the jurisdiction is a question of fact to be decided on its own facts of the case. 6.Further, relying on the phrase “knowledge of the case” in the quote above, Mr Kwan submits that to apply this test, the Court should have regard to the knowledge of the party allegedly having submitted to the jurisdiction, for example, whether a person from the Mainland, not legally advised, would think that he was submitting to the jurisdiction. With respect, I am unable to accept such submissions. First, “knowledge of the case” is different from the “knowledge of the party”. Second, the test is an objective test, and to have regard to the subjective knowledge of the party would be at least a mixed subjective-and-objective test. It is important at least in civil matters (where usually no stigma as in criminal proceedings is involved) that in general, objective, rather than subjective, test should be applied because only then the parties to the proceedings can know their positions with certainty. Third, “[l]ack of legal advice is not something a well-informed disinterested bystander would know about”: see Hong Kong Civil Procedure 2026, Vol. 1 at §11/4/45. It follows that whether that person is a Mainland person or not, he is taken as legally advised, and therefore, what he subjectively thought cannot be relevant. 7.Mr Kwan also refers me to DHCJ Reyes SC’s decision in Hwoo Huang Linda v Fu Being San [2013] 1 HKLRD 259 at §§25-26 for the legal principles. I do not see anything different from Cheung JA’s summary quoted above. However, I do think that §26(1) of the decision is relevant to the present applications:-
8.Following from this dicta, I would say that “a party may be treated as having submitted to the jurisdiction if he files [an affirmation in opposition] setting out his case on the substantive merits of an [originating summons].” 9.§26(6) of the learned judge’s decision is also relevant:-
B. Analysis 10.In the present case, on 16 January 2026, about 48 hours or so before the January Hearing excluding Saturday and Sunday (the deadline for filing opposing skeleton submissions according to Practice Directions 5.4 at §12), Qiu caused to be filed with the Registry (not just sending by post to the Court) a declaration (“Qiu’s Declaration”) signed by him containing the following contents:-
11.Reading Qiu’s Declaration as a whole, in my view, a third party with the knowledge of the case would regard Qiu’s Declaration as a document filed on his own behalf and in an attempt, on the Companies’ behalf. What he said in Qiu’s Declaration such as he having no possession of the documents could be grounds of opposition to the Plaintiff’s application against him personally. What he said in Qiu’s Declaration such as the documents having been delivered and improper purpose could be grounds of opposition to the Plaintiff’s applications against the Companies, and in that sense, against him personally, because if no order would be made against the Companies, no order would be made against him personally. 12.The major argument Mr Kwan labours on is that this declaration was not a procedural step envisaged in the rules. The rules required filing of affirmation in opposition, and Qiu’s Declaration was not such an affirmation. This argument, with respect, is the very technicality trap warned against in §26(6) of Hwoo Huang Linda v Fu Being San, supra. Although there, the warning seems to be a warning against taking a person as having submitted to the jurisdiction by some technicality, the same should also apply against not taking a person as having submitted to the jurisdiction by some technicality. After all, the approach is “a common sense approach”, “not [being] overly subtle or astute to find that a party has submitted to the jurisdiction”. 13.In my view, the fact that Qiu not only signed Qiu’s Declaration, but also took the trouble to have Qiu’s Declaration notarised and filed just about 48 hours before the January Hearing in Hong Kong, shows unequivocally that he would like the Court to consider Qiu’s Declaration before making an order, and for that purpose, Qiu’s Declaration set out the substantive grounds of opposition not only for the Companies but also for himself. For all practical purposes, Qiu’s Declaration was an affirmation filed in opposition to the Plaintiff’s applications. In my view, Qiu’s Declaration should be treated as such an affirmation, which treatment I am entitled to accord in such circumstances: see Fort Crown Investments Limited v Tam Virginia V. trading as Star Light International Agency Trading Services, CACV 173/2005 and CACV 174/2005, 5 January 2006 at §3 per Rogers VP (with whom Cheung and Tang JJA agreed). 14.Mr Kwan submits that as evidenced in the preamble of the Orders, Qiu’s Declaration was not considered. That may well be the case, but whether the Court considered it or not would be an act subsequent to the filing of Qiu’s Declaration. The relevant time must be the time of the act that is said to have constituted submission to the jurisdiction, and here, it was the filing of Qiu’s Declaration, and the Court’s consideration or lack of it can by no means have any relevance to whether Qiu submitted to the jurisdiction. 15.In the circumstances, I find that the filing of Qiu’s Declaration is “so inconsistent with maintaining an option to challenge forum that the party should be assumed to have waived such option”, and in other words, Qiu submitted to the jurisdiction. Therefore, the Orders were regular. III. UNDERLYING MERITS 16.As the Orders are regular, I need to consider whether there are any defence of real prospects of success. 17.First, for the defence that Qiu himself should not be a party under the Orders, the evidence clearly shows at least a prima facie case that he and/or the 3rd Defendant (another director) had control of the Companies and the auditors who kept at least some of the documents of the Companies acted in accordance with Qiu’s instructions. There was ample justification to join Qiu to the applications, and for the Orders against Qiu personally. 18.Second, relatedly, for the defence that Qiu should not be personally ordered to pay costs, given that there was ample justification to join Qiu and for the Orders against Qiu personally, by the usual costs orders, Qiu should be ordered to pay costs personally. It is particularly so when in the present case, it was a shareholders’ dispute between the Plaintiff on the one hand and Qiu and the 3rd Defendant on the other hand. The Companies, being deadlocked as a result of the dispute, should not be liable to pay the costs on their own. 19.Third, for the defence that the Companies had by 11 November 2025 indicated expressly no objection to the inspection of the Companies documents, I agree with Mr Terrence Tai (leading Mr Sik Chee Ching), counsel for the Plaintiff, that despite the offer, the Companies had remained silent to the Plaintiff’s request for production of the documents at all. This necessitated the Plaintiff’s applications by the Originating Summonses. Mr Tai accepts that by early January 2026, the documents covered by the Orders had been produced. However, contrary to Mr Kwan’s submissions, this does not follow that the Originating Summonses should be discontinued, because it was only by Qiu’s Declaration filed about 48 hours before the January Hearing that it was confirmed the earliest that all the documents had been produced. The January Hearing would still have to proceed in any event, given that the Plaintiff would also need time to consider Qiu’s Declaration and the confirmation came in such short notice that I would think the Plaintiffs would still have all justification for obtaining the Orders. 20.Fourth, relatedly, for the defence that the documents of the subsidiaries may not be documents of the parent companies, it was only upon the consideration of Qiu’s Declaration did the Plaintiff become aware that all the documents had been produced the earliest. However, given the lateness of Qiu’s Declaration, I see the utility of the Orders requiring Qiu properly to file an affirmation about the documents. 21.Fifth, for the defence of improper purpose, it is a high hurdle to pass. The mere fact that there was a shareholders’ dispute would not be sufficient. Rather, on the evidence filed before the Orders were made about the dubious circumstances of the change of directors mentioned in §§16-20 of the Plaintiff’s supporting affirmation, the dubious circumstances of loans mentioned in §§21-25, dubious circumstances of the request for capital contribution mentioned in §§26-29 and how the Plaintiff’s request for production of the Companies’ documents mentioned in §§32-34, I am satisfied that the applications were made with proper purposes. 22.In the circumstances, I am not satisfied that there is any merit in the underlying defence, and therefore, I refuse to set aside the Orders on merits. IV. CONCLUSION 23.In conclusion, I make the following order in each of the proceedings:-
24.It remains for me to thank Mr Kwan, Mr Tai and Mr Sik for their able assistance.
Mr Terrence Tai, leading Mr Sik Chee Ching, instructed by Yung & Au, for the Plaintiff in HCMP 2219/2025, HCMP 2220/2025 and HCMP 2221/2025 Mr Kwan Ping Kan, instructed by Zhong Lun Law Firm, for the 2nd Defendant in HCMP 2219/2025, HCMP 2220/2025 and HCMP 2221/2025 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCMP 2219/2025