DENG MIAN v. PAN RONG

HCRE 10/2025

[2025] HKCFI 3905

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

RECIPROCAL ENFORCEMENT PROCEEDINGS NO. 10 OF 2025

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DECISION

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A.  INTRODUCTION

1.  This is the applicant’s appeal against the decision of Master Hui who dismissed her application to register a mainland judgment under the Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement)  Ordinance (Cap. 645, Laws of Hong Kong)  (“the New Reciprocal Enforcement Ordinance”).

B.  BACKGROUND

2.  On 4 July 2017, the applicant and the respondent entered into two agreements, namely, a 理財合約 (“the Finance Management Agreement”)  and a 借款合同 (“the Loan Agreement”).

3.  In gist, the Finance Management Agreement provided, inter alia, that:

(1)  The respondent shall provide investment services for the applicant on local and foreign stocks and other financial products;

(2)  The initial principal provided by the applicant to be managed by the respondent would be RMB 2.4 million;

(3)  The finance management period would last for 5 years, from 1 July 2017 to 30 June 2022;

(4)  After the end of the finance management period, the applicant is entitled to ask for the return of her investments in part or in entirety with 3 months’ notice to the respondent;

(5)  If any dispute between the parties cannot be resolved, any party may commence legal proceedings at the People’s Court located at the place where the applicant’s residence is situated (“本合同在履行过程中发生的争议 [...] 可由任意一方依法向[原告人]住所地人民法院起诉”).

4.  On the other hand, the Loan Agreement provided, inter alia, that:

(1)  The applicant shall lend the respondent a sum of RMB 2.4 million, for the sole purpose of purchasing financial products as stipulated in the Finance Management Agreement;

(2)  The term of the Loan Agreement was 5 years, from 1 July 2017 to 30 June 2022;

(3)  If any dispute between the parties cannot be resolved, any party may commence legal proceedings at the People’s Court located at the place where the parties’ correspondence and residential addresses are situated (“本合同在履行过程中发生的争议 [...] 可由任意一方依法向合同双方通讯地址住所地人民法院起诉”)  (“the Loan Agreement Jurisdiction Clause”)

5.  It is alleged by the applicant that the respondent has failed to repay the principal of RMB 2.4 million upon her request.

6.  The applicant therefore brought proceedings on 24 February 2023 at 福建省廈門市思明區人民法院 (“the Fujian Court”)  against the respondent.

7.  However, the Fujian Court considered that it did not have jurisdiction over the matter, because:

(1)  The applicant did not live in the Mainland and her actual correspondence address was not within 福建省廈門市思明區;

(2)  The respondent’s place of residence was in 楊浦District in Shanghai;

(3)  The respondent’s correspondence address as stated in the Loan Agreement was in 楊浦District in Shanghai.

8.  The Fujian Court therefore transferred the case to 上海市楊浦區人民法院 (“the Shanghai First Instance Court”).

9.  The Shanghai First Instance Court held that:

(1)  The Loan Agreement was void, because the monies transferred by the applicant to the respondent were in substance not a loan but an investment;

(2)  The relationship between the parties should therefore be governed by the Finance Management Agreement;

(3)  The respondent had breached the Finance Management Agreement in failing to return the principal amount of RMB 2.4 million to the applicant.

10.  The respondent then appealed to the Shanghai Financial Court.  By its judgment dated 27 August 2024 (“the Shanghai Appellate Judgment”), the respondent’s appeal was dismissed.

11.  The applicant then took out an application at the Court of First Instance on 27 March 2025 to register the Shanghai Appellate Judgment, pursuant to the New Reciprocal Enforcement Ordinance.

12.  Upon consideration of the materials provided by the applicant, Master Hui raised the following requisition on 31 March 2025[1]:

“邓绵的非宗教式誓詞於2025年3月27日存檔法院，誓詞中附上「理財合同」，該合同的第6項條款存在「選用內地法院協議」，而申請人所申請登記的上海金融法院於2024年8月27日的民事判決書是根據該合同作出的。因此，該內地判決是屬於香港法例第645章《內地民商事判決(相互強制執行)條例》第5(1)(j)(i)條所指的排除判決。

除非申請人在2025年5月12日前進一步向法院陳詞，說明該內地判決何以不屬上述條例所指的排除判決，否則本申請將被撤銷。如申請人擬繼續尋求登記該內地判決，應自行查閱相關香港法例或徵詢獨立法律意見，並依程序提出合適申請。”

13.  The applicant then filed an affirmation on 8 April 2025 in response to the said requisitions.

14.  Master Hui did not accept the applicant’s submissions contained in the said affirmation.  The application for registration was therefore dismissed on 15 April 2025.

15.  On 16 May 2025, the applicant filed a Notice of Appeal to a Judge in Chambers.

16.  While the applicant had lodged her appeal out of time, she was only 3 days late.  I will therefore focus on the merits of her appeal in this Decision.

C.  DISCUSSION

C1.  Legal principle concerning an appeal from Master’s decision

17.  It is trite that an appeal from Master is dealt with by way of an actual rehearing of the application which led to the order under appeal, and the Judge treats the matter as though it came before him for the first time.  The Judge will give the weight it deserves to the previous decision of the Master, but he is in no way bound by it.  The Judge in chambers is in no way fettered by the previous exercise of the Master’s decision.

C2.  The applicant’s arguments

18.  In support of this appeal, the applicant has advanced the following arguments:

(1)  As the dispute between the parties has been conclusively adjudicated by the Shanghai Financial Court, the jurisdictional clauses contained in the Loan Agreement and the Finance Management Agreement are no longer applicable;

(2)  Since the respondent’s assets are located in Hong Kong, Hong Kong courts have jurisdiction over the subject dispute;

(3)  It is evident that the respondent is evading his legal liability to repay the applicant.  The Hong Kong court should not condone the respondent’s conduct;

(4)  The learned Master has not given her a chance to make submission on her application;

(5)  Since the choice of Mainland court agreements contained in the Finance Management Agreement and the Loan Agreement respectively are void, the Shanghai Appellate Judgment is not an “excluded judgment”.

C3.  Consideration of the applicant’s arguments

C3.1  The 1^st to 3^rd arguments

19.  The first 3 arguments are obviously misconceived and should be rejected outright.  The purpose of the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and of the Hong Kong Special Administrative Region is for mutual recognition and execution of judgments granted by the courts in the Mainland and in Hong Kong.  However, in order to take advantage of the said Arrangement, there are certain requirements which have to be satisfied, as set out in the Mainland Judgments (Reciprocal Enforcement)  Ordinance (Cap. 597, Laws of Hong Kong)  (“the Old Reciprocal Enforcement Ordinance”)  and the New Reciprocal Enforcement Ordinance, as the case may be.  To say that the respondent has assets in Hong Kong and that he has evaded enforcement in the Mainland are clearly not enough.  By virtue of her first 3 arguments, the applicant is effectively trying to achieve her purpose in getting her hand on the respondent’s assets in Hong Kong for enforcement purpose without complying with the requirements laid down by the law.  This is not permissible.

C3.2  The 4^th argument

20.  It is complained by virtue of the 4^th argument that Master Hui did not give the applicant a chance to put forward her submission in support of her application.  With respect, this complaint has been very unfairly lodged against the learned Master, who has given the applicant such a chance by virtue of the requisition raised on 31 March 2025 – see [12] above.

21.  Insofar as it is the applicant’s submission that she has not been given any chance to make oral submission, it is trite that there is no absolute right to an oral hearing as such.  The question of whether an oral hearing should be afforded must depend on, among other things, the standards of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision (in terms of its outcome and consequence), the issues involved, and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations: ST v Betty Kwan & Others [2014] 4 HKLRD 277, at [26]. 

22.  It has also been held by the Court of Final Appeal in Chow Shun Yung v Wei Pih & Another (2003)  6 HKCFAR 299 at [37.4] that, even at first instance, the right to a hearing does not always require oral submissions. Where no findings of fact are needed and oral submissions are considered unnecessary, the court may properly decide the case on the basis of written submissions.

23.  In the present case, the applicant’s interest was not prejudiced at all despite the fact that no oral hearing had been held, as all her arguments have been effectively made by virtue of her affirmation filed on 8 April 2025.

24.  Therefore, the 4^th argument is not accepted.

25.  In any event, since this appeal is conducted as a rehearing of the applicant’s application for registration, this ground cannot be helpful to the applicant.

C3.3  The 5^th argument

26.  The 5^th argument touches on the sole real issue in the applicant’s application, namely, whether the Shanghai Appellate Judgment is an “excluded judgment” by virtue of section 5(1)(j)(i)  of the New Reciprocal Enforcement Ordinance. 

27.  To answer this question, I should first of all refer to a number of statutory provisions to demonstrate the particular requirement in this aspect.

28.  Section 10(1)  of the New Reciprocal Enforcement Ordinance states that:

“(1)  Subject to section 11, a judgment creditor under a Mainland Judgment in a civil or commercial matter may apply to the Court for a registration order to register the Judgment, or any part of the Judgment, if—

(a)  the Judgment—

(i)  was given on or after the commencement date* of this Ordinance; and

(ii)  is effective in the Mainland; and

(b)  the following conditions are satisfied—

(i)  the Judgment or part requires the payment of a sum of money, or the performance of an act, by a party to the original proceedings for the Judgment;

(ii)  a default in complying with the requirement occurred within 2 years before the date of the application; and

(iii)  the default has not been made good as at the date of the application.”

29.  It can be seen that, in order to be registrable under the New Reciprocal Enforcement Ordinance, the judgment concerned must, among other things, be a “Mainland Judgment in a civil or commercial matter”. 

30.  This term has been specifically defined in section 3 of the New Reciprocal Enforcement Ordinance.  For the present purpose, I only have to quote sub-section (1)  thereof:

“For the purposes of this Ordinance, a Mainland Judgment in a civil or commercial matter is a Mainland Judgment—

(a)  that—

(i)  is given in proceedings that are civil or commercial in nature under the law of the Mainland; or

(ii)  is given in proceedings that are criminal in nature under the law of the Mainland, and contains an order for the payment of a sum of money in respect of compensation or damages by a party to the proceedings; and

(b)  that is not an excluded judgment.”

(emphasis added)

31.  “Excluded judgment” has in turn been defined in Section 5 of the New Reciprocal Enforcement Ordinance, which has included quite a number of different kinds of judgments.  Amongst them, as stated in sub-section (1)(j), is a judgment which:

“[…] is given pursuant to –

(i)  for a Mainland Judgment—a choice of Mainland court agreement made before the commencement date* of this Ordinance; or

(ii)  […]”

32.  The commencement date of the New Reciprocal Enforcement Ordinance is 29 January 2024. 

33.  It has been further provided in section 5(2)  of the New Reciprocal Enforcement Ordinance that “choice of Mainland court agreement” has the meaning given by section 2 of the Old Reciprocal Enforcement Ordinance.

34.  Pursuant to section 2 of the Old Reciprocal Enforcement Ordinance, “choice of Mainland court agreement” has the meaning assigned to it by section 3(2)  of the same Ordinance, which provides that:

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

35.  Having considered the above provisions, the question in the present case boils down to this: was the Shanghai Appellate Judgment given pursuant to a choice of Mainland court agreement[2]?

36.  The answer can be seen from the judgment of the Fujian Court.  The relevant part thereof reads:

“鉴于邓绵长期未在国内居住，其经常居所地在中华人民共和国领域外，其实际通讯地址也不在福建省厦门市思明区辖区。而潘荣的住所地位于上海市杨浦区国顺东路900弄24号901室，且《借款合同》亦载明上述地址为潘荣的通讯地址，《借款合同》约定由“双方通讯地址住所地人民法院管辖”，因此，应当按照潘荣的上述地址确定案件管辖权。由于潘荣的通讯地址位于上海市杨浦区国顺东路900弄24号901室，属于上海市杨浦区辖区，因此，本院不具有管辖权。依照《中华人民共和国民事诉讼法》第三十五条、第一百三十条第一款，《最高人民法院院关于适用<中华人民共和国民事诉讼法＞的解释》第三十条之规定，裁定如下：本案移送上海市杨浦区人民法院处理。”

(emphasis added)

37.  The statutory provisions referred to in the above quotation have been set out in an appendix attached to the said judgment.  They are as follows:

《中華人民共和國民事訴訟法》第三十五條

“合同或者其他財產權益糾紛的當事人可以書面協議選擇被告住所地、合同履行地、合同簽訂地、原告住所地、標的物所在地等與爭議有實際聯繫的地點的人民法院管轄，但不得違反本法對級別管轄和專屬管轄的規定。”

《中華人民共和國民事訴訟法》第一百三十條第一款

“人民法院受理案件後，當事人對管轄權有異議的，應當在提交答辯狀期間提出。人民法院對當事人提出的異議，應當審查。異議成立的，裁定將案件移送有管轄權的人民法院；異議不成立的，裁定駁回。”

《最高人民法院院關於適用<中華人民共和國民事訴訟法>的解釋》第三十條

“根據管轄協議，起訴時能夠確定管轄法院的，從其約定；不能確定的，依照民事訴訟法的相關規定確定管轄。”

38.  In my view, the decision of the Fujian Court to transfer the applicant’s claim to the Shanghai First Instance Court was apparently made pursuant to the Loan Agreement Jurisdiction Clause.  It follows that the judgment of the Shanghai First Instance Court and the Shanghai Appellate Judgment were both given pursuant to the same clause, which is a choice of Mainland court agreement.

39.  The aforesaid conclusion is not affected by the fact that the Loan Agreement was subsequently found by the Shanghai First Instance Court and the Shanghai Financial Court to be void, for it is a matter of fact that the matter was transferred by reason of the Loan Agreement Jurisdiction Clause.

40.  For the sake of completeness, I should also make it clear that I disagree with the applicant that the Loan Agreement Jurisdiction Clause has been held to be unenforceable.  That is a misunderstanding of the judgment of the Fujian Court quoted above.

41.  The matter can be analysed in another way.

42.  By her 5^th argument, the applicant is effectively saying that since the Loan Agreement had been held to be void, the Loan Agreement Jurisdiction Clause should also be of no effect, and therefore such a clause cannot be the basis for the conclusion that the Shanghai Appellate Judgment is an “excluded judgment”.

43.  Whether a clause qualifies as a “choice of Mainland court agreement” is a matter of interpreting the local Ordinance applying Hong Kong law: Beijing Renji Real Estate Development Group Co Ltd v Zhu Min [2022] 4 HKC 116, [2022] HKCFI 1027, at [40].

44.  It is also well established that a jurisdiction clause is regarded as a separate agreement from the substantive agreement between the parties, and that unless specific attack is directed against the jurisdiction clause, it is not excluded from application to a dispute involving claims that the agreement as a whole is vitiated such as by fraud, mistake, illegality or the like: China National Geological & Mining (HK)  Limited v Tianjin Hopetone Co., Ltd. [2020] HKCFI 1338, at [51] – [52], applying Deutsche Bank AG & Ors v Asia Pacific Broadband Wireless Communications Inc & Anor [2008] EWCA Civ 1091, at [24] – [27] and [29].

45.  In the present case, there is no specific attack on the Loan Agreement Jurisdiction Clause.  There is therefore no reason why such a clause should not be invoked.

46.  To conclude, the Shanghai Appellate Judgment which the applicant is seeking to register in Hong Kong was given pursuant to the Loan Agreement Jurisdiction Clause, which is a choice of Mainland court agreement made before the commencement date of the New Reciprocal Enforcement Ordinance.  The Shanghai Appellate Judgment is therefore an excluded judgment pursuant to section 5(1)(j)(i)  of the said Ordinance, which cannot be registered under the New Reciprocal Enforcement Ordinance.

D.  ORDER

47.  By reasons of the aforesaid, the applicant’s appeal is dismissed.

E.  COSTS

48.  I make no order as to the costs of the appeal.