RESORTS WORLD AT SENTOSA PTE. LTD v. WONG FEI FU

HCMP 12/2018

[2020] HKCFI 1236

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 12 OF 2018

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REASONS FOR DECISION

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INTRODUCTION

1.  This is the Respondent (“Wong”)’s application to set aside the registration of a foreign judgment against him under section 6(1)(a)(iii) of the Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap 319) (the “Ordinance”) and Order 71 rule 7 of the Rules of High Court (Cap 4A).  At the end of the hearing, I ordered that the registration be set aside.  Here are the reasons for decision.

PROCEDURE OF THE REGISTRATION OF FOREIGN JUDGMENT

2.  By an ex parte Originating Summons filed on 4 January 2018, the Applicant applied for an order to register a judgment of the High Court of Singapore (the “Singapore Judgment”), a superior court, obtained by the Applicant on 29 August 2017 for a sum of SGD1.638,786.00 plus interest thereon and costs (the “Judgment Sum”) against Wong Fei Fu (“Wong”) under the Ordinance.  The Singapore Judgment was obtained in Wong’s default in entering an appearance to the High Court of Singapore under Order 13 of the Rules of High Court of Singapore.  The Singapore Judgment is final and conclusive.  There is no application in Singapore to set aside the Singapore Judgment or appeal from it or any other kind of application that would disturb it. 

3.  By an ex parte Order made by Master Hui on 12 January 2018 (“Master Hui’s Order”), the Singapore Judgment was registered.  Further, on 17 January 2018, a Notice of Registration of Foreign Judgment was issued to Wong pursuant to Order 71, rule 7 of the Rules of High Court. 

4.  On 18 January 2018, the Applicant served the Notice of Registration and Master Hui’s Order on Wong by ordinary post at the following addresses: -

(1)  Unit A13, 9/F, Block 2, Camel Paint Building, 62 Hoi Yuen Road, Kwun Tong, Kowloon, Hong Kong (the “Camel Paint Address”), the business address of Hong Kong Gulong Coastal Travel Ltd (“Gulong Coastal”) of which Wong was a director;

(2)  Flat F, 14/F, Chee On Building, 24 East Point, Causeway Bay, Hong Kong (the “Chee On Address”);

(3)  Room 11, 33/F, Block 4, Choi Ngan House, Choi Po Court, Sheung Shui, New Territories, Hong Kong (the “Choi Ngan Address”), the business address of one Gold Parcel Investments Ltd of which Wong was a director; and

(4)  Blk 23, 16/F, Room G, Nova Taipa Gardens, R.de SengTuo, Taipa, Macau (the “Nova Taipa Address”).

5.  In his supporting affirmation, the address of which is the Nova Taipa Address, Wong deposes that on 7 November 2019, Wong’s wife informed him about a statutory demand issued by the Applicant dated 10 October 2019 (the “Statutory Demand”) sent to the Nova Taipa Address and received by her.  In the Statutory Demand, the registration of the Singapore Judgment was mentioned.  He then instructed his solicitors to obtain all the papers in relation to the registration of the Singapore Judgment, and the same were obtained on 21 November 2019.  This was, according to Wong, the first time he had been shown the Notice of Registration and Master Hui’s Order. 

6.  On 2 December 2019, Wong issued the present summons to set aside the registration of the Singapore Judgment. 

WONG’S ADDRESSES

7.  There is no dispute that Nova Taipa Address is Wong’s residential address in Macau, although as shall be explained later, according to Wong, he did not stay there from early 2017 until September or October 2019. 

8.  As regards the Hong Kong addresses, Wong mentions that he was a shareholder of a few limited companies incorporated in Hong Kong, namely, (1) Top Concord Investment Limited, (2) On Leader Development Limited, (3) Gold Parcel Investments Limited and (4) Gulong Coastal.  According to Wong, they were empty shell companies formed with his son and/or his business partner for investing in the property market in Hong Kong.  He claims that the registered office addresses of those companies are “nominal” only. 

9.  Wong alleges that they could not find any investment opportunity, and he and his business partner had been more focused on business other than in Hong Kong.  For his part, he travelled to Macau and Mainland China frequently and spent little time in Hong Kong.  He goes so far to say that it is not surprising that he and his business partner have not received the letters sent to those addresses. 

10.  I pause to note that: -

(1)  The registered address of Top Concord Investment Limited and On Leader Development Limited is 3/F, Hyde Centre, 221 Gloucester Road, Wanchai, Hong Kong, which is the address of Wong as the company secretary.  This is not any of the addresses on which the Plaintiff has effected service of any documents. 

(2)  On Form NAR1 of the two companies filed in May and September 2017 respectively both signed by Wong, the addresses of the two shareholders, namely, Wong and Wong’s son (Wong Chung), were the Chee On Address and the Nova Taipa Address respectively. While Wong has attempted in his affirmation to explain that the registered office address (also being the address of him as the company secretary) is “nominal”, he has not given any explanation as to the status of this Chee On Address which he filled in as the address of him as a shareholder, while Wong’s son did (and still does) live in the Nova Taipa Address as filled in. 

(3)  For Gold Parcel Investments Limited, it has four shareholders according to its Form NAR1 filed in March 2017, namely, Wong, Chong Chi Ho, Chogn Kar Wing and Leong Kin Ian. Its registered office address is the Choi Ngan Address, which is also the address of Chong Chi Ho and Chong Kar Wing.  Wong’s address in this Form NAR1 is the Nova Taipa Address.  There is no explanation why this Nova Taipa Address was still filled up there while according to Wong himself, he had moved to Zhuhai in February 2017.  Nor is there any explanation as to whether his business partners Chong Chi Ho and/or Chong Kar Wing had received any letters addressed to the Choi Ngan Address and if so, whether they informed Wong. There is no affirmation from them either. 

(4)  For Gulong Coastal, according to its Form NAR1 filed in November 2017, its registered office address is the Camel Paint Address, which is the address of its corporate company secretary.  The address of Wong (the sole shareholder) is the Zhuhai Address.  There is no explanation as to whether the company secretary received any letters addressed to Wong and if so whether the company secretary has discharged its usual forwarding duty to forward the letters to Wong. 

PROCEDURE OF THE SINGAPORE PROCEEDINGS

11.  As regards the Singapore proceedings (the “Singapore Proceedings”) that led to the Singapore Judgment, on 26 May and 15 June 2017, the Applicant’s Macau lawyers attended the Nova Taipa Address in an attempt to effect personal service of the Singapore Proceedings on Wong, but was told on both occasions that “there was no such person”.  There is no evidence that the documents of the papers of the Singapore Proceedings were left at Nova Taipa Address in any event.  On 24 and 25 July 2017, the notice of the Singapore Proceedings was advertised in a Portuguese newspaper and a Chinese newspaper respectively. 

12.  The Singapore Judgment was obtained in default on 29 August 2017. 

13.  By a letter of 5 December 2017 issued to Wong, the Applicant’s legal representative in Singapore, Straits Law Practice LLC demanded Wong to pay the Judgment Sum, but to no avail. 

14.  Also on 5 December 2017, the Singapore Judgment was served by mail on the aforesaid four addresses. 

15.  On 18 January 2018, the Applicant served the Notice of Registration and Master Hui’s Order on Wong by ordinary post at the aforesaid four addresses. 

16.  I pause to note that the attempted service in Macau and the advertisement in Macau mentioned in paragraph 11 above were not raised at all in the affirmation made in support of the ex parte Originating Summons leading to Master Hui’s Order for the registration of the Singapore Judgment.  Nor was the fact that Wong held a Macau passport and had a Macau residential address.  Nor was the Applicant’s knowledge that Wong may or may well have been residing at the Nova Taipa Address.  Wong’s counsel, Mr Harrison Cheung (leading Mr Martin Lau), complains that this is material non-disclosure at the ex parte stage and therefore the registration of the Singapore Judgment should be discharged on this ground alone.  I shall analyse submissions in relation to this later here. 

MACAU PROCEEDINGS

17.  On 22 January 2018, having obtained Master Hui’s Order on 18 January 2018 in Hong Kong, the Applicant applied to the Macau Court for an order to recognise the Singapore Judgment, a junior court clerk of the Macau Court called at the Nova Taipa Address to summons Wong.  Wong’s son answered that Wong was his father and that Wong resided in the Mainland.  That said, Wong’s son thereafter immediately told Wong about what happened, feeling that it was a serious matter and he should tell this to Wong. 

18.  On the same day, Wong attended the Macau Court and accepted service of documents.  He gave to the Macau Court the address of 26E, L’Arc Macau.  The Macau Court refused to recognise the Singapore Judgment, finding that the Singapore proceedings were not served duly on Wong in Macau in accordance with the Macau rules and procedures, and that therefore, the Singapore Judgment was defective in that the Singapore requirement for service out of the Singapore Proceedings be in compliance with the local rules and procedures was not met.  The Court of Final Appeal of Macau upheld this ruling. 

WONG’S RESIDENCE IN MACAU FOR 2017 – 2019

19.  In Wong’s reply evidence filed on 20 May 2020, he raised for the first time ever that he did live in the Nova Taipa Address prior to 2017, together with his wife and his son, but in early 2017, his wife discovered his extra-marital affairs and serious dispute arose. He further deposes that he was not allowed back to the Nova Taipa Address, and as a result, in February 2017, he rented and stayed in Room 701 of 珠海香洲區情侶路311號山海一品別墅.  According to him, there was no contact between Wong and his wife and subsequently, towards the end of 2017, Wong located a suitable place for his residence at 澳門沙格斯大馬路50至18號壹號廣場36樓T8/E座.  

20.  Wong’s explanation for the lateness of all these allegation is that it was related to his private matter and he was reluctant to disclose the same.  I find this explanation not satisfactory because he well knew when filing his supporting affirmation on 2 December 2019 that the registration of the Singapore Judgment was a serious matter that could entail serious legal consequence against him, especially in the light of the Statutory Demand.  This has made me cast doubt on Wong’s general credibility at least insofar as his evidence concerning his whereabouts for the period 2017 – 2019. 

21.  Further, I note that this address is different from the one Wong gave to the Macau Court on 22 January 2018 when he reported to the Macau Court.  I also note that there is no evidence as to whether the flat at this address was rented or owned by Wong; nor is there any documentary evidence of the use and occupation of any flats (for example, water and electricity utilities).  I also note that while he claimed to be living in Zhuhai for February 2017 towards the end of 2017, according to his travel record, he still stayed in Macau for quite a number of days.  There is however no evidence as to where he stayed in Macau. 

22.  Wong’s son makes an affirmation in support of Wong’s evidence about Wong’s relationship with his mother.  Wong’s son also alleges that the Nova Taipa Address received letters addressed to Wong from time to time and he did not open them.  According to him, he did not open letters from law firms because Wong had received letters from law firms about non-contentious matters and thus he did not think that there might be contentious matters. 

23.  I note, however, that there is no evidence as to where those letters were kept and when Wong became aware of those letters, while Wong himself remains silent on this point although he said that he moved back to the Nova Taipa Address in September or October 2019. 

24.  While Wong’s son makes an affirmation in support of Wong, Wong’s wife does not. 

GROUNDS IN SUPPORT OF SETTING ASIDE

25.  Mr Cheung relies on the following two grounds for setting aside: -

(1)  The Applicant had material non-disclosure at the time of the ex parte application, namely, the failure to mention the failed personal service of the Singapore Proceedings in Macau and Wong being a Macau resident. 

(2)  In any event, Wong did not receive notice of the Singapore Proceedings in sufficient time to enable him to defend the Singapore Proceedings: see section 6(1)(a)(iii) of the Ordinance. 

26.  Before considering these two grounds, Wong has a hurdle to overcome – whether the application to set aside should be entertained in the first place give that it is made out of time. 

APPLICATION TO SET ASIDE OUT OF TIME

27.  Master Hui’s Order prescribed 14 days from the date of service of the Order for Wong to apply to set aside, that is, 1 February 2018.  The present summons was issued on 2 December 2019.  In other words, it was issued approximately 22 months late.  Mr Cheung submits that because section 6(1) is mandatory in nature, the Court must set aside the registration if it is satisfied that the condition under section 6(1) is made out, irrespective of the time limit. 

28.  Section 6(1)(a)(iii) provides that: -

“On an application in that behalf duly made by any party against whom a registered judgment may be enforced, the registration of the judgment –

(a) shall be set aside if the registering court is satisfied –

(iii) that the judgment debtor, being the defendant in the proceedings in the original court, did not (notwithstanding that process may have been duly served on him…) receive notice of those proceedings in sufficient time to enable him to defend the proceedings and did not appear…” (my emphasis)

29.  The necessary procedural condition before the registering Court shall set aside the registered judgment is an application “duly made”.  “Duly” in my view means that an application must be made within the time prescribed.  The time prescribed is not a time prescribed without any statutory power or with any inherent jurisdiction of the Court subordinate to the rights conferred by an ordinance.  Here, the power to prescribe a time limit for setting aside comes from section 5(1)(d) of the Ordinance, which precedes section 6. 

30.  Practically, it also makes sense that a time limit should be prescribed for setting aside because of the need for certainty and minimising any prejudice to the judgment creditor and possibly third parties. 

31.  Therefore, I reject Mr Cheung’s contention that the Court must set aside the registration if it is satisfied that the condition under section 6(1) is made out, irrespective of the time limit. 

32.  In order to consider whether an application should be allowed out of time, given the similar nature to an application to set aside a default judgment under Order 13 and 19, the usual factors considered in granting time extension and setting aside under such an application should be considered here, namely, the length of delay, the reasons for the delay, any prejudice to the judgment creditor and third parties and the substantive merits of the matter itself. 

33.  As regards the approach to the affidavit evidence filed in support of an application out of time deposing lack of notice of the documents or proceedings in question, I follow the approach applied by Andrew Chung J in Wei Bingqing v Xie Diangrong, HCA 2654/2003, 1 April 2006 towards the affidavit evidence filed in support of an application under Order 13 to set aside a default judgment: see also Hong Kong Civil Procedure 2020 Vol 1 at paragraph 13/9/5.  In essence, “the court has little option but to believe this save when there is sufficient material to cast doubt upon the defendant’s credibility to enable the court to disbelieve him (which is a matter of evidence dependent on the circumstances of the case)” (my emphasis). 

34.  In the present case, 22 months is a significant period of delay.  There is, however, no evidence of any prejudice to anybody, save and except for the obvious prejudice to the Applicant that it would be deprived of the benefit of the registration of the Singapore Judgment, which it sought to enforce as late as in October 2019 by way of the Statutory Demand. 

35.  As regards the reasons for the delay, Wong alleges that he had notice of the registration of the Singapore Judgment as late as November 2019.  However, for the following reasons, I am not satisfied that he received the notice so late: -

(1)  The Notice of Registration and Master Hui’s Order were sent to the four addresses on 18 January 2018.  As pointed out above, there is no good evidence to explain why those addresses were not effective in bringing documents to Wong’s notice. 

(2)  Wong’s allegation that he lived in 澳門沙格斯大馬路50至18號壹號廣場36樓T8/E座 from 2018 until September or October 2019 (see paragraph 19 above) is contradicted by his reporting to the Macau Court in January 2018 that he lived in 26E, L’Arc Macau. 

(3)  There is no corroborating evidence like utility bills to show that he did live in 澳門沙格斯大馬路50至18號壹號廣場36樓T8/E座 from 2018 until September or October 2019. 

(4)  On the other hand, Wong’s son would inform Wong of the Macau legal proceedings immediately on the same day in January 2018. 

(5)  In addition, all the allegations about his residence in Macau were raised for the first time only in his reply affirmation filed on 20 May 2020.  

(6)  The quality of his evidence concerning his whereabouts for the period from 2017 to 2019 is cast in doubt as explained above. 

36.  Wong’s evidence in this respect being not accepted, the likelihood is, and I so find, that Wong did receive notice of the registration and Master Hui’s Order in or around January 2018, and that there is no good reason for the delay.  At the hearing, Mr Cheung apparently suggested that Wong could explain further by way of affirmation if necessary.  I did not entertain such suggestion, because the burden lies upon Wong to put the evidence in order before the substantive hearing, and he cannot be heard to say that he would still like to file further evidence at the substantive hearing in the light of any requisitions raised at the hearing, except for special reasons, which do not exist here. 

37.  That said, given the lack of prejudice, the substantive merits of the application should have a significant effect.  This I now turn to consider. 

MATERIAL NON-DISCLOSURE

38.  The Applicant failed to mention the failed attempt to serve the Singapore Proceedings on Wong in Macau, the service by way of advertisement in the newspapers in Macau and Wong’s residence or possible residence in Macau.  All these clearly relate to the question of whether Wong had notice of the Singapore Proceedings, a ground for setting aside under section 6(1)(a)(iii) of the Ordinance.  All these clearly should have been, but were not, mentioned at the ex parte stage. 

39.  The explanation for the failure is scant.  The Applicant seems to say that it genuinely believes with sufficient grounds that Wong was ordinarily resident in Hong Kong, and that the Singapore Judgment, exhibited to the affirmation in support of the ex parte application, already mentioned that Wong had a Macau passport. 

40.  What the Applicant believes, whether genuine and supported by evidence, is besides the point.  In an ex parte application, the Applicant had to set out all the relevant matters, in favour of and against the Applicant.  The Applicant would then be free to argue that on these various matters, a conclusion should be drawn in favour of him.  But the Applicant should not be allowed to jump to the conclusion without highlight the matters against him.  Further, the Applicant should also not be allowed to rely on matters mired in exhibits without drawing the Court’s attention specifically to those matters. 

41.  Worse, the Applicant has not explained why it did not disclose the history of the service of the Singapore Proceedings in Macau, which is directly relevant to whether Wong had knowledge of the Singapore Proceedings.  That it attempted service in Macau clearly showed that it well knew that Wong resided there.  The Applicant’s emphasis on its belief that Wong was ordinarily resident in Hong Kong without mentioning the possibility that he resided in Macau is disingenuous, put mildly. 

42.  In the circumstances, I am satisfied that there were material non-disclosures at the ex parte stage, and thus the Notice of the Registration and Master Hui’s Order should be discharged.  Due to lack of any good explanation for the failure, I see no reason for any re-grant. 

LACK OF NOTICE OF THE SINGAPORE PROCEEDINGS

43.  Further and in any event, the history of the service of the Singapore Proceedings is consistent with Wong’s evidence that he did not have the notice of the Singapore Proceedings before the Singapore Judgment was obtained.  As mentioned above, even the Applicant’s evidence is that the server, who attempted to serve the papers of the Singapore Proceedings at Nova Taipa, was told that there was no such person.  There is no evidence that the papers were left there.  The next service was by way of advertisement in the newspapers in Macau in July 2017, and there is no evidence except for a mere belief from the Applicant that Wong acquired actual notice of the same via the newspapers.  I therefore accept Wong’s evidence that he did not have actual notice of the Singapore Proceedings before the Singapore Judgment was obtained.  As held by DHCJ Alexander Stock SC in paragraph 32 of Resorts World At Sentosa Pte Ltd v Sze Siu Hung [2018] HKCFI 1646, for the purpose of section 6(1)(a)(iii) of the Ordinance, it is the actual notice of the foreign proceedings before the foreign judgment is obtained in question that matters.  Applying this, Wong has made out his opposition under the section. 

CONCLUSION AND ORDER

44.  In the circumstances, the substantive merits of the application to set aside are overwhelming in favour of Wong.  Taking into account the lack of prejudice, I am satisfied that I should entertain the present application out of time, and that on the substantive merits of the setting aside application, I am satisfied that section 6(1)(a)(iii) of the Ordinance was made out.  Therefore, I ordered that the registration of the Judgment of the High Court of the Republic of Singapore dated 29 August 2017 in Case No HC/S 269/2017 pursuant to the Order made by Master Hui on 12 January 2018 be set aside. 

45.  As regards costs, while the usual costs order for setting aside on the ground of material non-disclosure is that the applicant should bear the costs, the special circumstances as I find here are that Wong did not become aware of the Notice of Registration and Master Hui’s Order as late as in November 2019 as he alleged, but that he became aware of this around the time of the service in January 2018.  The delay is substantial and there is no explanation of the delay.  This kind of conduct should be discouraged.  Having heard counsel’s submissions, I made no order as to costs.