BEIJING RENJI REAL ESTATE DEVELOPMENT GROUP CO., LTD v. ZHU MIN

HCA 189/2025

[2026] HKCFI 197

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 189 OF 2025

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D E C I S I O N

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A.  INTRODUCTION

1.  In these proceedings, the plaintiff (“P”) is seeking to enforce the judgment made by the Beijing Higher People’s Court (“BHPC”)’s judgment (2017) 京民終161號 (“BHPC Judgment”) in the sum of RMB 192,579,705.21 (“the Sum”) by way of the common law route.

2.  By a summons dated 25 April 2025 (“the Summons”), the plaintiff (“P”) seeks summary judgment, alternatively interim payment, against the defendant (D”). This is the substantive hearing of the Summons.

3.  In this hearing, P is represented by Mr William Wong SC, leading Mr Lai Chun Ho and Mr Lim Han Sheng. D is represented by Mr Bernard Man SC, leading Mr William Wong.[1]

4.  I have considered the evidence before me, including the evidence on the Chinese Mainland law given by the parties’ respective experts. I have also considered the parties’ respective written and oral submissions. Having considered all these, I reach the conclusion that P is entitled to have summary judgment. My reasons appear below.

B.  BACKGROUND[2]

B1.  The Parties’ Dealings

5.  D is the founder of the Cybernaut Investment Group.

6.  In November 2010, 海南中投聯合投資管理有限公司 (“Hainan Zhongtou”) was incorporated. Its shareholders were (a) 杭州賽伯樂投資管理諮詢有限公司 (“Hangzhou Cybernaut”) (38%), (b) 海南聯合資產投資管理有限公司 (35%), (c) 海南省谷盛實業投資有限公司 (“Gusheng”) (20%) and (b) 北京中投聯投資管理有限公司 (7%) (“Beijing Zhongtou”).

7.  D controls Hangzhou Cybernaut. Gusheng and Beijing Zhongtou were controlled by 尚選玉 (“Shang”), who was based in Hainan and managed the Hainan Zhongtou’s business as General Manager. Shang was also a director of Hainan Zhongtou.

8.  On 18 August 2011, P and Hainan Zhongtou entered into a partnership agreement (海南中投聯合漁業投資中心 (有限合夥) 合夥協議) (“Partnership Agreement”) to invest in a fishery centre (“Fishery Centre”). P and Hainan Zhongtou agreed to invest RMB150 million and RMB 5 million respectively in the Fishery Centre, which shall in turn invest in 臨高思遠實業有限公司 (“Siyuan”) with a view to having it listed. Siyuan is owned by 鄭立剛 (“Zheng”).

9.  On the same day, P and Hainan Zhongtou entered into a supplemental partnership agreement (海南中投聯合漁業投資中心 (有限合夥) 合夥協議之補充協議) (“Supplemental Agreement”). In Clause 2(11) of the Supplemental Agreement, Hainan Zhongtou undertook to procure the transfer of P’s shares in the listed entity or in the Fishery Centre to a third party at a price not lower than P’s original investment by 31 December 2012 (“Maturity Date”).

10.  By a 保證投資承諾函 (“Guarantee”) in favour of P, D and Hangzhou Cybernaut undertook that in the event Hainan Zhongtou failed to perform the obligation under Clause 2(11) of the Supplemental Agreement, D or Hangzhou Cybernaut shall acquire P’s interest in the listed entity or in the Fishery Centre at a price not lower than P’s original investment by the Maturity Date.

11.  The intended listing became impossible after a storm in Hainan destroyed an important asset of the Fishery Centre on 29 September 2011 (“the 2011 Storm”).

12.  Hainan Zhongtou failed to procure a third party to purchase P’s interest in the Fishery Centre by the Maturity Date. Thus, D and Hangzhou Cybernaut became liable to purchase the same for RMB 150 million.

13.  In 2013, P executed the following documents (“the 2013 Documents”):

(1)  On 29 November 2013, P entered into a “Capital Transfer Agreement” with Hainan Zhongtou by which P agreed to transfer its interest in the Fishery Centre to a company nominated by Hainan Zhongtou for RMB 50 million.

(2)  Also on 29 November 2013, P executed a unilateral “Undertaking” to release D and Hangzhou Cybernaut from the Guarantee; and

(3)  On 5 December 2013, P entered into a “2013 Supplemental Agreement” with Hainan Zhongtou and Gusheng by which Gusheng was nominated to receive P’s interest in the Fishery Centre.

14.  It is P’s case that:

(1)  After the default of Hainan Zhongtou in complying with Clause 2(11) of the Supplemental Agreement, Shang had discussions with Zheng, with a representative of P, Liu Yue (“Liu”), keeping abreast of the negotiations. The parties reached a preliminary understanding that Zheng would repurchase the Fishery Centre’s 40% interest in Siyuan for RMB 150 million.

(2)  However, P was defrauded into accepting a lesser sum of RMB 50 million for its equity interest in the Fishery Centre in the following manner:

(a)  On 18 October 2013, Shang and Zheng entered into a “Repurchase Agreement” by which Zheng agreed to repurchase the Fishery Centre’s 40% interest in Siyuan for RMB 150 million. The money was transferred to bank accounts controlled by Shang.

(b)  At the same time, Shang colluded with Liu to conceal the Repurchase Agreement from P and deceive P into believing that Zheng was insolvent and could only pay RMB 50 million.

(c)  As a result of the fraud perpetrated by Shang and Liu, P was induced to execute the 2013 Documents.

15.  In or around 2014, P made a complaint to the Mainland authorities that it had been defrauded by its own officer, Liu, who was bribed by and colluded with Shang, into executing the 2013 Documents.

16.  By a criminal judgment of the Haikou Longhua Court dated 17 February 2017 (“Liu Judgment”), Liu was convicted of bribery upon his own plea and admission. In that judgment, it was held that Liu received RMB 20 million in bribes from Shang and misrepresented to P about Hainan Zhongtou’s inability to recover the investment of RMB 150 million in the shares in Siyuan from Zheng in full. As a result, P sold its investment in Fishery Centre at an undervalue to Hainan Zhongtou (RMB 50m), which was controlled by Shang.

17.  Regarding Shang, on 22 March 2017, the Hankou City Public Security Bureau (“Haikou PSB”) withdrew its criminal investigation against Shang, for Haikou PSB was of the view that Shang had not been involved in any crime of conspiracy (“不具備涉嫌合同詐騙罪的主觀故意和客觀行為”) (“1^st Withdrawal Decision”).

18.  It is D’s case that the 1^st Withdrawal Decision and the Liu Judgment are inherently inconsistent with each other.

B2.  Arbitration

19.  In 2016, P commenced arbitration before the Beijing Arbitration Commission (“BAC”) against Hainan Zhongtou and Gusheng (“BAC Arbitration”), seeking, inter alia, (a) to rescind the 2013 Documents for fraud, and (b) a monetary award of RMB 150 million.

20.  P did not join D and Hangzhou Cybernaut as parties to the BAC Arbitration.

21.  Hainan Zhongtou and Gusheng did not participate in the BAC Arbitration.

22.  On 29 November 2016, BAC rendered an award in P’s favour and set aside the 2013 Documents on the ground that P was defrauded by Shang and Liu (“Arbitral Award”).

23.  On 22 January 2018, Gusheng applied to the Beijing Intermediate People’s Court (“BIPC”) to set aside the Arbitral Award. On 28 June 2018, Gusheng’s application was dismissed.

B3.  Mainland Judgments

24.  On 19 January 2017, P commenced proceedings in the BIPC against Hainan Zhongtou for the sum of RMB 150 million and damages of RMB 60 million pursuant to Clause 2(11) of the Supplemental Agreement, and against D and Hangzhou Cybernaut as guarantors under the Guarantee.

25.  On 28 December 2018, the BIPC handed down a judgment (“BIPC Judgment”), in which the BIPC dismissed P’s claim.

26.  Subsequently, P lodged an appeal to the BHPC. On 13 August 2019, in the BHPC Judgment, BHPC allowed P’s appeal, set aside the BIPC’s judgment, and ordered that all defendants be jointly and severally liable to P for the sums claimed by P.

27.  On 17 September 2019, D and Hangzhou Cybernaut applied to the Supreme People’s Court (“SPC”) for a retrial (再審).

28.  On 6 March 2020, D submitted a notarial certificate in support of his application for a retrial. However, it transpired that SPC had already dismissed D’s application for a retrial on 27 December 2019. SPC had also dismissed Hangzhou Cybernaut’s application for a retrial on 30 June 2020 (“SPC Decisions”).

B4.  Investigation

29.  On 30 December 2019, Hangzhou Cybernaut lodged an application with the People’s Procuratorate of Haikou City (“Haikou PP”), requesting it to direct the Haikou PSB to re-open criminal investigation into Shang’s conduct and the correctness of the Liu Judgment.

30.  On 24 February 2020, the application was rejected by Haikou PP.

31.  On 31 March 2020, Hangzhou Cybernaut applied to the People’s Procuratorate of Hainan Province (“Hainan PP”) for an order directing Haikou PP to reconsider its decision pursuant to Article10 of Rules of Criminal Procedure of People’s Procuratorate (“RCP”).

32.  By a letter dated 10 June 2021, Hainan PP informed Hangzhou Cybernaut that (a) its application was accepted, (b) there was good cause to investigate the case of Shang, and (c) Haikou PP had been directed to deal with the matter pursuant to Articles 558-561 of RCP.

33.  By a letter dated 14 July 2021, Haikou PP informed Hangzhou Cybernaut that it had issued a Notice of Case Filing (通知立案書) to Haikou PSB on 23 June 2021, and Haikou PSB had decided to commence an investigation against Shang on 7 July 2021 (“Investigation”).

34.  It is P’s case that on 11 November 2024, the Haikou PSB decided to withdraw the Investigation against Shang for the second time (“the 2^nd Withdrawal Decision”).

35.  It is D’s case that the 2^nd Withdrawal Decision is not related to the Investigation, and the outcome of the Investigation remains pending. D’s case is that:

(1)  The 2^nd Withdrawal Decision was made by Haikou PSB in response to the criminal complaint initially filed by P on 30 October 2014, closed in 2017, but reopened following Hainan PP’s decision to launch the Investigation as sought by Hangzhou Cybernaut.

(2)  According to Hangzhou Cybernaut’s representative 林炽贤 (“Lin”), he recently inquired with the Hainan PP by approaching its petition window (信访窗口) and was informed that the Investigation remains ongoing. He was told that a written document setting out the outcome of the Investigation would be provided once the Investigation was completed. In April 2025, Lin was further informed by Haikou PSB that the 2^nd Withdrawal Decision was issued to P because there was insufficient evidence showing criminality by Shang, so the case as reported by P was closed.

(3)  In any event, any notice about the Investigation must originate from the Hainan PP as opposed to Haikou level entities.

36.  D says that the SPC Decisions do not spell the end of D’s seeking recourse against the BHPC Judgment. Upon the completion of the Investigation, D intends to apply for a retrial by (a) applying to the Supreme People’s Procuratorate (“SPP”) requesting supervisory review of (檢察建議) or protest against (抗訴) the BHPC Judgment and the SPC Decisions (“SPP Application”) and (b) petitioning for review (提起申索) (“Petition”) with the President of the BHPC on the following grounds under Article 200 of the PRC Civil Procedural Law (“CPL”):

(1)  There is a fundamental error in the BHPC Judgment as it lacks evidential basis: Article 200(2) CPL. The BHPC Judgment was premised on a finding of collusion between Liu and Shang. There is an irreconcilable conflict between the Liu Judgment and the 1^st Withdrawal Decision, which was overlooked by the BHPC and the SPC.

(2)  Material new evidence which is sufficient to overturn the original ruling in the BHPC may emerge from the Investigation: Article 200(1) CPL.

B5.  Hong Kong Proceedings

37.  Previously, P commenced HCMP 361/2020 to try to enforce the BHPC Judgment in Hong Kong by registering the same under the Mainland Judgments (Reciprocal Enforcement) Ordinance (Cap.597). That application was heard together with P’s application for a Mareva injunction in HCMP 83/2020.

38.  On 7 April 2020, G Lam J JA (sitting as an additional judge of the Court of First Instance) handed down a judgment (“CFI Judgment”), in which he set aside the registration order granted by Master Hui on the basis that there is no “choice of court” agreement. However, he continued the Mareva injunction and held that there is a good arguable case that the BHPC Judgment may be enforced by the common law route.

39.  On 2 October 2024, the Court of Appeal handed down a judgment (“CA Judgment”), in which the Court of Appeal affirmed the CFI Judgment.

C.  THE PRINCIPLES AND THE ISSUES

40.  The principles concerning summary judgment are well established. A succinct summary can be found in Elegant Mark Investment Ltd v Dai Yumin[3], 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”.”

41.  There is no dispute that a foreign judgment may be enforced at common law if it is (a) for a debt or definite sum of money, (b) made by a court of competent jurisdiction, (c) between the same parties or their privies on an identical issue, (d) final and conclusive on the merits, and (e) not impeachable according to Hong Kong conflicts rules.[4] The dispute between the parties is whether the BHPC Judgment satisfies conditions (d) and (e).

42.  D has put forward two grounds to oppose P’s claim:

(1)  the BHPC Judgment is not final and conclusive by virtue of the “trial supervision” system (審判監督程序) under Chinese Mainland law (“Trial Supervision Ground”); and

(2)  the BHPC Judgment is impeachable for being contrary to public policy (“Public Policy Ground”).

D.  DISCUSSION

D1.  Trial Supervision Ground

43.  As to whether a judgment made by a Mainland Court should be regarded as final and conclusive for the purpose of considering whether that judgment can be enforced by the common law route in Hong Kong, recently in Sunsco International Holdings Ltd v Lin Chunrong[5], DHCJ Jonathan Wong has thoroughly reviewed the authorities on the issue[6]. After reviewing the authorities, 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)

I am in respectful agreement with the learned judge.

44.  According to D, it is arguable that the BHPC Judgment should not be regarded as final and conclusive, for there are substantive grounds in support of having a retrial, and it is likely that a retrial would be ordered under the “trial supervision” system. The substantive grounds relied upon by D are as follows:

(1)  Article 200(2) CPL is met because the ruling in the BHPC Judgment lacks evidentiary support.

(a)  There are inconsistencies between the Liu Judgment and the 1^st Withdrawal Decision which are irreconcilable. Those inconsistencies have been overlooked by BHPC and SPC.

(b)  There are further inconsistencies between Liu Judgment and the 1^st Withdrawal Decision. According to the Liu Judgment, Zheng paid Shang RMB 150 million to repurchase the Siyuan’s shares only. However, according to the 1^st Withdrawal Decision, the RMB 150 million was also for 40% shares in a project owned by Shang. The latter, if true, would undermine the alleged fraudulent misrepresentation, which is based on the premise that Shang had managed to recover RMB 150 million from the purchase of the Siyuan Shares, hence rendering Liu’s representation to P false.

(c)  The decision to void the Undertaking in the Arbitral Award was premised on the materials in Liu’s criminal proceedings which were submitted to the BAC. If the 1^st Withdrawal Decision is correct, the premise of the Arbitral Award would become false.

(d)  Further or alternatively, D will also rely on the following substantive defences in the re-trial sought:

(i)  The time limit for enforcement of the Guarantee had expired on 30 June 2013 before P brought its claim before the Mainland courts (“the Time Limit Issue”). This is based on Article 26 of the Mainland Guarantee Law (中國人民共和國擔保法).

(ii)  The 2011 Storm constituted a force majeure event which released D from the Guarantee under Article 117 of Mainland Contract Law (中國人民共和國合同法) (“the Force Majeure Issue”).

(2)  Article 200(1) CPL is met because in the event that the Investigation resolves the conflict in favour of the 1^st Withdrawal Decision and/or finds that there was no fraud on the part of both Shang and Liu, there would constitute new evidence showing that there was no valid basis for vitiating the 2013 Documents. This will directly contradict the findings in the BHPC Judgment.

(3)  For the aforesaid reasons, there is also a “clear and definite error” within the meaning of Article 198 CPL and an error within Article 124(1) of Rules on Civil Litigation Supervision by the People’s Procuratorate.

45.  With respect, D’s submissions are flawed and cannot be accepted.

46.  It is flawed to say that the BHPC Judgment lacks evidentiary support.

(1)  As submitted by P, by saying that there are inconsistencies between Liu Judgment and the 1^st Withdrawal Decision given that (a) Liu was convicted while Shang was not prosecuted, and (b) there are inconsistencies on some the factual findings between the Liu Judgment and the 1^st Withdrawal Decision, D is not saying that the BHPC Judgment lacks evidentiary support. Rather, D is saying that the BHPC erred in preferring Liu Judgment over the 1^st Withdrawal Decision.

(2)  There is no basis to say that the BHPC Judgment lacks evidentiary support:

(a)  Liu Judgment could properly constitute evidence of Liu having colluding with Shang as a matter of Chinese Mainland law.

(b)  It is an indisputable fact that Liu admitted and confessed to his wrongdoing.

(3)  There is also no basis to say that the BHPC has overlooked the 1^st Withdrawal Decision in their deliberation leading to the BHPC Judgment.

(a)  The 1^st Withdrawal Decision was expressly referred to in the BIPC Judgment, which was the subject decision considered by the BHPC in the appeal.

(b)  Hainan Zhongtou had adduced the 1^st Withdrawal Decision as evidence in the appeal heard by the BHPC.

(c)  Shang himself appeared in the hearing before the BHPC on 4 April 2019 (“the BHPC Hearing”), and Shang submitted that he had not been involved in any relevant criminal activities, and that the criminal investigation against him had been discontinued.

47.  In my view, BHPC has clearly taken the 1^st Withdrawal Decision into account before making the BHPC Judgment. It is plain that the BHPC would not be bound by the 1^st Withdrawal Decision. BHPC made an independent judgment based upon all the evidence before them. There is nothing inherently wrong that notwithstanding the 1^st Withdrawal Decision, BHPC independently reached the conclusion as set out in the BHPC Judgment.

48.  As to the two defences which D intends to raise in the re-trial, as submitted by P, there is no substance in these arguments.

(1)  The Time Limit Issue has already been rejected by the BHPC and the SPC in their respective decisions.

(2)  The Force Majeure Issue had never been raised by D before the Mainland Courts.

(3)  In any event, D has not adduced any expert evidence as to why these defences would have any merit under the Chinese Mainland law.

49.  As to whether the Investigation has been completed, there is a dispute between P and D on this matter. For the purpose of considering P’s application for summary judgment, I proceed on the assumption that the Investigation has not been completed. Even with this assumption, I am unable to accept D’s submission that there “may be” new evidence after completion of the Investigation, and the new evidence “may” have the effect of overturning the BHPC Judgment.

(1)  D cannot merely say that there is a chance that some new evidence may appear which would have the effect of overturning the BHPC Judgment. D would need to demonstrate that the chance is a reasonable chance and not a fanciful chance. In my judgment, D has failed to overcome this hurdle.

(2)  If the outcome of the Investigation is that Shang would not be prosecuted, that would put D in the same position as he was before. There would be nothing new to overturn the BHPC Judgment.

(3)  If the outcome of the Investigation is that Shang should be prosecuted, that could only be worse for D, as it shows that the prosecutorial authorities have taken a view that there was conspiracy between Liu and Shang.

50.  D’s case is premised upon the proposition that some new evidence may emerge as a result of the Investigation, which would show that both Liu and Shang are in fact innocent. In my view, given the fact that Liu was convicted upon his own plea and admission, expecting new evidence of this kind is unrealistic and unreasonable.

51.  D contends that he may still apply for an order for a retrial by making a SPP Application or by lodging a Petition with the President of the BHPC. In my view, D has failed to demonstrate any substantive ground in support of a retrial. That being the case, the existence of theoretic route(s) (if any) for making an application for an order for a retrial is neither here nor there.

52.  In my judgment, D has failed to show an arguable case that there is a likelihood that a retrial would be ordered under the “trial supervision” system. The Trial Supervision Ground is not arguable.

D2.  Public Policy Ground

53.  In resisting a claim based upon a foreign judgment, the defendant cannot impeach the foreign judgment by challenging the merits of the judgment. As pointed out by Lam VP (as he then was) in China NPL Holdings Pte Ltd v Mo Haidan[7]:

“24. In respect of a claim based on foreign judgment as the cause of action, it is possible to run a defence based on lack of jurisdiction, fraud, public policy or against natural justice. However, it is not open to a defendant to impeach a foreign judgment based on the underlying merits as the judgment is final and conclusive on the issues of fact and law pertaining to such merits.” (Emphasis added)

54.  A foreign judgment may be impeached if it offends against Hong Kong’s view of “substantial justice” (or “natural justice”). The principles have recently been summarised by Mimmie Chan J in DP World Djibouti Fzco and Others v China Merchants Port Holdings Co Ltd[8]. In that case, the learned judge said:

“71. The applicable legal principles in this regard are not in serious dispute between the parties. As summarized by Counsel for the Plaintiffs, they are:

(1) While a foreign judgment may not be impeached in Hong Kong on merits, it may be impeached if:

(i) it offends against the Hong Kong Court’s views of “substantial justice”, such as where the proceedings in which the judgment was obtained were opposed to “natural justice” (Qu Jian Qin v Hu Jing [2020] HKCFI 2788 at para 21; Dicey, Morris & Collins on the Conflict of Laws (16^th Edition), para 14-R-158, 14-159); or

(ii) it is “so wrong as to be evidence of bias, or [is] such that no court acting in good faith could have arrived at it”: Maximov v Open Joint Stock Co ‘Novolipetsky Metallurgichesky Kombinat’ [2017] 2 CLC 121, at para 15.

……

72. The Plaintiffs have further made reference to various authorities to illustrate the meaning of “natural justice” (or “substantial justice”). These are:

(1) As explained by Atkins LJ in Jacobson v Frachon (1927) 138 LT 386, at 392, natural justice encompasses two key requirements, namely (i) notice is given to the litigant that the court is about to proceed to determine the rights between him and the other litigant and (ii) having given him that notice, the litigant is afforded an opportunity of substantially presenting his case before the court.

(2) In Adams v Cape Industries Plc [1990] 1 Ch 433 the English Court of Appeal clarified that the defence of breach of natural justice is not restricted to the two situations identified by Atkins LJ. The Court referred to the test stated by Lindley MR in Pemberton v Hughes [1899] 1 Ch 781, 790, and explained the key question as being “whether the procedural defect alleged by [the party resisting enforcement of the foreign judgment] was such as to constitute a breach of an English court’s views of substantial justice”.

(3) Where there is evidence of a “perverse” refusal by the foreign court to apply the law in a judicial manner, it may be possible to oppose recognition on the ground that the behavior of the court infringed natural justice: see OJSC Bank of Moscow v Chernyakov [2016] EWHC 2583 (Comm) at para 7.” (Emphasis added)

55.  D’s case is that the BHPC Judgment should not be enforced in Hong Kong for the reason that the judgment is contrary to public policy. D contends that natural justice had not been observed in the Mainland proceedings:

(1)  D is not a party in the BAC Arbitration and is not bound by the Arbitral Award. However, in the BHPC Judgment, BHPC simply asserted and proceeded on the basis of the rulings in the Arbitral Award and held that the Undertaking was invalid. BHPC took the view that once the Undertaking was set aside, D must be liable under the Guarantee. SPC concurred with BHPC.

(2)  P had never invited BIPC or BHPC to independently determine whether the Undertaking should be set aside. By taking the issue upon themselves, BHPC has breached the principle of “no accusation, no trial” (不告不理) in Chinese Mainland law.

(3)  By assuming the conclusions in the Arbitral Award are correct and binding upon D, both BHPC and SPC have ignored the fact that D is not a party in the BAC Arbitration and has never been given a chance to defend the validity of the Undertaking in the arbitration. Further, BHPC and SPC have ignored the principle that a non-party should not be bound by the conclusions in an arbitration award. The injustice is compounded by the fact that there is no available route for D to set aside the Arbitral Award.

(4)  If BHPC and SPC are to be understood as having independently arrived at the view that the Undertaking was executed as a result of fraud and not simply relying on the findings in the Arbitral Award, the problems are as follows:

(a)  The fraud is the collusion between Liu and Shang. The fraud is not directed against D. There would not be any legitimate basis for setting aside the Undertaking as against D. To deprive D of the benefit of the Undertaking without any allegation of personal wrongdoing against D is both procedurally unfair and substantively unjust.

(b)  There is inexplicable inconsistency in relation to the allegation of the fraud involving Liu and Shang. See [16]-[18] above.

(c)  Even if the Undertaking is to be set aside due to fraud, D should be given the opportunity to defend himself under the Guarantee and to present his case. Had D been given the opportunity, D could have advanced the following substantive arguments:

(i)  the Time Limit Issue;

(ii)  the Force Majeure Issue;

(iii)  D could challenge the narrative of the alleged fraud; and

(iv)  the conflict between Liu Judgment and the 1^st Withdrawal Decision.

56.  I am not persuaded by D’s submissions.

57.  Regarding the alleged breach of the “no accusation, no trial” principle in the Mainland proceedings, I am of the view that D is not entitled to raise this point in opposing P’s application for summary judgment. As rightly pointed out by P, in the Defence filed by D, D merely complains that BHPC and SPC did not address the arguments raised by him in the Mainland proceedings, but not that BHPC and SPC traversed beyond the issues raised by the parties.[9] As confirmed by the Court of Appeal in Wang Shuai v Zhang Qiaohui[10], where a defendant has filed a defence, he cannot, in opposition to a summary judgment application, rely on a case not pleaded in the defence.

58.  As submitted by P, I am of the view that BHPC did not regard the Arbitral Award as binding on D, and did not make a ruling against D based upon the Arbitral Award. BHPC made an independent finding about the collusion between Liu and Shang by relying upon Liu Judgment. As a matter of Chinese Mainland law, the facts found in a criminal judgment are prima facie valid unless rebutted. I agree with P that the acknowledgment of Liu’s conviction in the BHPC Judgment means that BHPC has taken Liu Judgment into account and made a finding of the collusion between Liu and Shang based upon Liu Judgment. Liu’s conviction was pronounced on 27 February 2017, after the handing down of the Arbitral Award on 29 November 2016. Had the BHPC merely followed the Arbitral Award in making their judgment, it would not have been necessary for them to refer to Liu Judgment, which was made by the criminal court subsequent to the Arbitral Award.

59.  As to the alleged inconsistency between Liu Judgment and the 1^st Withdrawal Decision, the point has been dealt with in [46] and [47] above. Further, this point in fact is a challenge against the merits of the BHPC Judgment, which is an impermissible challenge under the Public Policy Ground.

60.  It is factually incorrect to say that D was not given an opportunity to present his case in the BHPC. In the BHPC Hearing on 4 April 2019, D’s legal representatives attended the hearing and had an opportunity to present D’s case. D raised the Time Limit Issue and BHPC dealt with that issue in the BHPC Judgment. As to any new issue which D did not raise in the proceedings in BHPC and intends to raise now (for example, the Force Majeure Issue), D only has himself to blame.

61.  I do not see any arguable ground upon which it can be said that the BHPC Judgment is impeachable for it offends against natural justice. In my view, D has not put forward an arguable case by relying upon the Public Policy Ground.

62.  D’s points in support of the Public Policy Ground in this case were raised before in HCMP 361/2020 but were rejected in the CFI Judgment and the CA Judgment. In this hearing, D has argued that there would be no estoppel preventing D from raising the same points in this case. D also contends that the findings against those points in the CFI Judgment and the CA Judgment are inadmissible for the present purposes. It would not be necessary for me to go into these arguments. Suffice for me to say that I reach the conclusion as set out in the above independently by my own analysis, and I have not relied upon anything said in the CFI Judgment and the CA Judgment in reaching the conclusion.

D3.  Summary judgment

63.  I am satisfied that P has made out a prima facie case that they are entitled to have summary judgment. For the reasons set out in the above, I am of the view that D has failed to show any arguable defence. In the circumstances, P’s application for summary judgment must be allowed.

64.  In the BHPC Judgment, BHPC awarded a principal sum of RMB 150 million, together with interest, to P. Up to 24 January 2025, the amount of interest has exceeded RMB 84 million. However, the BHPC capped the amount of interest at RMB 60 million (“the Interest Cap”). Taking into account in the Interest Cap and the sums recovered by P in the enforcement actions in the Mainland, the sum now due to P under the BHPC Judgment (including interest) is the Sum.

65.  In the hearing before me, I raised the question that given the Interest Cap in the BHPC Judgment, if I allow P’s application for a summary judgment and order D to pay the Sum to P, whether I should order any pre-judgment and/or post judgment interest on the Sum.

66.  P’s position is that P is not seeking any pre-judgment interest, but P says that there should be post-judgment interest on Sum. P submits that:

(1)  In this case, P is suing for a debt, ie the debt as contained in the BHPC Judgment. If P’s claim is allowed, the debt would merge with the judgment given by this Court, and there should be post-judgment interest on the judgment granted by this Court.

(2)  S.49(1) of the High Court Ordinance (“HCO”) provides:

“Judgment debts shall carry simple interest —

(a) at such rate as the Court of First Instance may order; or

(b) in the absence of such order, at such rate as may be determined from time to time by the Chief Justice by order,

on the aggregate amount thereof, or on such part thereof as for the time being remains unsatisfied from the date of the judgment until satisfaction.” (Emphasis by P)

(3)  Given the wording of s.49(1) of the HCO, the judgment awarded by this Court shall carry post-judgment interest.

(4)  There is a good rationale for the existence of post-judgment interest. With the existence of post-judgment interest, the judgment debtor would try to pay off the whole judgment sum sooner rather than later.

67.  D’s position is that if P succeeds in this case, P should not be entitled to have interest on the Sum. D submits that:

(1)  The maximum interest allowed by BHPC has been included in the Sum. P should not be entitled to have any further interest.

(2)  By seeking to enforce the BHPC Judgment in Hong Kong by the common law route, P is in fact saying that there should be issue estoppel in respect of every issue decided in the BHPC Judgment. The issue of interest has been decided in the BHPC Judgment. BHPC has imposed the Interest Cap in the BHPC Judgment. P is bound by the BHPC’s decision on the issue of interest and cannot try to reopen the issue in the Hong Kong Court.

(3)  The issues in dispute in the Mainland proceedings, including the issue of interest, are governed by the Chinese Mainland law. In considering the issue of interest, one should apply the Chinese Mainland law, not the Hong Kong law. Thus, s.49 of the HCO would not be relevant for the purpose of determining interest.

(4)  BHPC has applied the Chinese Mainland law and decided the issue of interest in the BHPC Judgment. There is no reason to reopen the issue of interest in these proceedings.

68.  Having considered the parties’ respective submissions, I prefer D’s submissions on interest. Accordingly, I would decline to order post-judgment interest in this case.

69.  Alternatively, even if I have to apply s.49 of the HCO in considering post-judgment interest, I would exercise the discretion conferred upon this Court in s.49(1)(a) to specify that there should be no post-judgment interest in the circumstances of this case.

(1)  Although the word “shall” is used in s.49(1) of the HCO, the rate of post-judgment interest is at the Court’s discretion. Reading that section as a whole, I am of the view that this Court do have a discretion under that section to specify that there should be no post-judgment interest by fixing the interest rate at 0% in appropriate circumstances.

(2)  P is trying to enforce the BHPC Judgment in Hong Kong. P’s success in this case means that P’s entitlements in the BHPC Judgment would become entitlements under a Hong Kong judgment. In my view, P’s entitlements under the Hong Kong judgement should be same as those under the BHPC Judgment, no more and no less. While BHPC has capped the interest at RMB 60 million in the BHPC Judgment, I can see no reason why P should be allowed to have more interest when P chooses to enforce the BHPC Judgment in Hong Kong.

(3)  For the reasons above, in the circumstances of this case, even if s.49 of the HCO is applicable, I would decline to allow P to have any post-judgment interest by fixing the post-judgment interest rate at 0%.

(4)  I appreciate that without any post-judgment interest, D may try to delay to pay the judgment debt to P. However, P has many ways to enforce the judgment and to compel D to make payment without any delay.

70.  I would enter final judgment in favour of P and against D for the Sum. By reason of the Interest Cap in the BHPC Judgment, there would be no pre-judgment interest or post-judgment interest.

E.  DISPOSITION

71.  I grant summary judgment to P as indicated in the above with costs. There be a costs order nisi that costs of these proceedings, including costs of the Summons, be to P. There be a certificate for two counsel. Those costs are to be taxed if not agreed. Unless there is an application for variation of the costs order nisi made by an inter partes summons within 14 days after the handing down of this decision, the costs order nisi shall become absolute without a further order.

72.  Lastly, it remains for me to thank all counsel for the very helpful assistance rendered to the Court.