廈門新景地集團有限公司formerly known as 廈門市鑫新景地房地產有限公司 v. ETON PROPERTIES LTD AND ANOTHER

HCCT 105/2026

[2026] HKCFI 5258

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS NO. 105 OF 2026

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J U D G M E N T

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I. INTRODUCTION

1.  Before me are two matters.  The first is the Originating Summons filed by the Plaintiff on 21 April 2026 (the “Originating Summons”) for an anti-suit injunction against the 1^st and 2^nd Defendants (the “Defendants”) to:-

(1)  restrain them from taking any steps to pursue the court proceedings with case no (2026) 閩02民初127號 before 福建省廈門市中級人民法院 (the “New PRC Action” and the “Xiamen Court” respectively) or any claims or reliefs therein, including those claims made in the Defendants’ 民事起訴狀 dated 5 January 2026 (the “Statement of Complaint”) and the reliefs sought in 行為保全申請書 dated 5 January 2026 (the “Conduct Preservation Application”); and

(2)  order them to take all necessary steps to discontinue the New PRC Action.

2.  The second matter is the Summons filed by the Plaintiff on 25 August 2026 (the “Summons”) for an interlocutory injunction that the Defendants shall take steps to discontinue the New PRC Action.  The Summons was taken out with some urgency.  The urgency arose from the Xiamen Court’s directions given on 21 August 2026 that there shall be a substantive hearing of the New PRC Action on 18 September 2026.

3.  The relief sought by the Summons is the same as the final relief of the Originating Summons.  The Originating Summons was originally scheduled to be heard on 23 September 2026.  At the direction hearing on 31 August 2026, I found it appropriate, with the parties’ agreement, that the Originating Summons and the Summons shall be disposed of together so that the parties could focus their submissions on the underlying substantive issue rather than where the balance of convenience lies.  Further, given the urgency, I found also appropriate, with the parties’ agreement, to dispose of the matters on paper with a short timetable for filing and serving evidence and written submissions.  In this regard, I am grateful for the thorough and able assistance promptly given by the parties’ counsel (Mr Bernard Man SC, leading Mr James Man and Mr Jonathan Ng, for the Plaintiff, and Mr Christopher Chain SC, leading Ms Tinny Chan and Mr Sim Jing En, for the Defendants).

4.  Given the shortness of time, this Judgment may be necessarily brief, and it would be appreciated if any typographical errors would be forgiven.  Further, given the shortness of time, it has not been possible to arrange for translation of any quotations I shall make here from the relevant Chinese documents.  

II.  BACKGROUND

5.  The parties have been embroiled in a series of litigation in Hong Kong for more than 15 years.  The relevant background has been set out in Ribeiro PJ’s judgment (the “CFA Judgment”) in 廈門新景地集團有限公司formerly known as 廈門市鑫新景地房地產有限公司 v Eton Properties Limited and Others [2020] HKCFA 32 (reported in (2020) 23 HKCFAR 348).  I gratefully draw from the CFA Judgment for the background set out below.

6.  The Defendants, both Hong Kong companies, were part of a group of companies which I shall refer to as the “Eton Group”.  The Group was under Mr Lucio Tan’s control.

7.  On 4 July 2003, the Plaintiff and the Defendants entered into an agreement (the “Agreement”), whereby:-

(1)  The Defendants warranted that they had “absolute control” over a Hong Kong company known as Legend Properties (Xiamen) Company Limited (“Hong Kong Legend”).  The significance of Hong Kong Legend was that it owned a PRC company known as Legend Properties (Xiamen) Company Limited (“PRC Legend”), which had the right to develop a piece of land in Xiamen (the “Land” or “Lot 22”);

(2)  The Plaintiff agreed to purchase the two shares, each held by each Defendant, in Hong Kong Legend at the transfer price of RMB120,000,000 (a deposit of RMB5,000,000 to be paid upon signing and the remaining balance to be paid by instalments);

(3)  The two shares in the Hong Kong Legend shall be transferred to an entity designated by the Plaintiff “for the purpose of obtaining the right to develop [the Land] in the name of [PRC Legend] and obtaining the right to profits”;

(4)  Delivery of the Land to the Plaintiff for development shall take place within 6 months of the date of the Agreement, that is, 4 January 2004; and

(5)  The Agreement shall be governed by the PRC law, and the parties shall submit disputes arising from the performance of the Agreement to the China International Trade Arbitration Commission (“CIETAC”) in Beijing for arbitration.

8.  The Plaintiff paid the deposit of RMB5,000,000 pursuant to the Agreement.  However, the Defendants did not deliver the Land to the Plaintiff pursuant to the Agreement.  Instead, it issued a notice dated 14 November 2003 purportedly to terminate the Agreement. 

9.  The Plaintiff did not accept the purported termination.  Further, on 17 January 2004, the Plaintiff demanded delivery of the Land.

10.  The Defendants did not deliver the Land.  Instead, since around 2004, the Eton Group took steps to develop the Land themselves.

11.  On 8 August 2005, the Plaintiff commenced the CIETAC arbitration in Beijing against the Defendants for breach of the Agreement.  The first hearing was to take place on 23 November 2005.

12.  On 16 November 2005, just a week before the first hearing was to take place, a restructuring of the corporate shareholdings (the “Restructuring”) relating to the Land started.  As a result of the Restructuring completed on or around April 2006, a BVI company in the Eton Group (“BVI Eton”) held all the shares in Hong Kong Legend and thus indirectly the ownership of PRC Legend, and ultimately the rights to the Land.  The Restructuring means that the term of the Agreement that the Defendants shall transfer the two shares in the Hong Kong Legend to an entity designated by the Plaintiff “for the purpose of obtaining the right to develop [the Land] in the name of [PRC Legend] and obtaining the right to profits” could not be performed.

13.  However, the Plaintiff was not aware of the Restructuring until 2 January 2008 as explained in §17 below.

14.  On 30 June 2006, PRC Legend started pre-sales of the units being developed on the Land.

15.  On 27 October 2006, the arbitration tribunal made an award (the “1^st Award”) in favour of the Plaintiff, holding that the Agreement gave rise to “the contractual right to buy and sell the shares in [Hong Kong Legend] that has an indirect effective control over [the Land]”, and ordering the Defendants to “continue to perform the Agreement”.  In the 1^st Award, the tribunal pointed out that the Agreement “… needs close cooperation between the parties and reasonable efforts to seek alternative approaches to meet the purpose of the Agreement”.

16.  The Plaintiff applied to enforce the 1^st Award in Xiamen, but on 30 July 2007, the Xiamen Court declined the application for the reason that the Defendants were Hong Kong companies whose assets were outside jurisdiction.  As a result, the Plaintiff made an ex parte application in HCCT 54/2007 to the Court of First Instance in Hong Kong for enforcing the 1^st Award in Hong Kong. On 31 October 2007, A Cheung J (as he then was) entered a judgment (the “Statutory Judgment”) in terms of the 1^st Award under sections 2GG and 40B of the then Arbitration Ordinance.

17.  On 2 January 2008, the Defendants applied to set aside the Statutory Judgment on the basis that the performance of the 1^st Award was now impossible by reason of, among others, (1) the fact that the Defendants were no longer able to transfer their shares in Hong Kong Legend to the Plaintiff as a result of the Restructuring; and (2) the fact that delivery of the Land to the Plaintiff was also impossible because 99% of the residential units on the Land had been sold.  This was the first time that the Defendants disclosed the Restructuring to the Plaintiff.

18.  Now aware of the Restructuring, on 27 May 2008, the Plaintiff commenced a common law action (HCA 961/2008 subsequently re-listed as HCCL 13/2011) to enforce the 1^st Award.

19.  Meanwhile, on 24 June 2008, Reyes J (as he then was) dismissed the Defendants’ application to set aside the Statutory Judgment.  On 22 May 2009, the Court of Appeal affirmed Reyes J’s dismissal.

20.  Having failed before Reyes J, the Defendants commenced another arbitration (the “2^nd Arbitration”) applying for a determination that the Agreement could no longer be performed and seeking a ruling that the parties be discharged from the Agreement.  The hearing took place on 21 January 2009, and on 22 April 2009, the tribunal made its Award (the “2^nd Award”) rejecting the Defendants’ application.  In the 2^nd Award, the tribunal held that the Restructuring constituted breach of the Agreement and could not be a ground for terminating the Agreement, noting that “the recognition and enforcement of the earlier arbitral award” was being carried out in the Hong Kong Court in accordance with Hong Kong legal procedures and refraining from commenting on the earlier award and the Hong Kong Court’s judgment.

21.  After that, the Defendants made yet another attempt for arbitration, this time on the tribunal’s mention in the 1^st Award (mentioned above) that the Agreement “needs close cooperation between the parties and reasonable efforts to seek alternative approaches to meet the purpose of the Agreement”.  By their letter dated 19 June 2009 to the tribunal, the Defendants applied for a ruling on “alternative approaches” on the ground that “[the] objective circumstances of this case have changed significantly, the two contracting parties are unable to continue to perform the Agreement according to the original provisions”.

22.  By its letter dated 27 July 2009 (the “27 July 2009 Letter”), the tribunal gave the Defendants’ application a short shrift, stating in no unclear terms that:-

“The arbitral tribunal adjudicated the case fully... After investigation, the [First Award] is final, there was no mistake in relation to writing, typing or calculation which needs to be corrected. Also the arbitral tribunal in the Award did not leave out any matter which would need to be further determined according to the PRC Arbitration Law and the Arbitration Rules of the Arbitration Commission. Accordingly, the arbitral tribunal does not accept the abovementioned application of [the Defendants].”

23.  The battleground now came to HCCL 13/2011, a common law action commenced by the Plaintiff to enforce the 1^st Award as mentioned above.  In 2010, upon the Defendants’ application, the Court of First Instance granted an order of stay of HCCL 13/2011 in favour of arbitration.  However, shortly thereafter, by its judgment on 15 December 2010 (the “CA Judgment”), the Court of Appeal set aside the order of stay.  Leave to appeal against the CA Judgment was refused by the Court of Appeal on 25 January 2011, and their renewed application to the Appeal Committee of the Court of Final Appeal for leave to appeal  was also refused in the Appeal Committee’s determination on 4 May 2011 (the “CFA Stay Determination”).

24.  HCCL 13/2011 proceeded.  On 21 December 2011, the Plaintiff amended the pleadings by adding an alternative claim for damages or equitable compensation from the Defendants (the “Plaintiff’s Damages Claim”).  The legal basis for the Plaintiff’s Damages Claim, according to the Plaintiff, was breach of the implied promise by the Defendants to honour the 1^st Award (the “Implied Promise”).  On 12 March 2012, the Court ordered a split trial, hiving off the assessment of the Plaintiff’s Damages Claim to be dealt with after the determination of the Defendants’ liability.

25.  Trial of liability took place in March 2012.  On 14 June 2012, the trial judge dismissed all of the Plaintiff’s claim.  On appeal, by its judgment handed down on 15 April 2016 (the “CA Liability Judgment”), the Court of Appeal allowed the Plaintiff’s claim for breach of the Implied Promise.  The Defendants appealed against this to the Court of Final Appeal.  This appeal led to the CFA Judgment.  It is necessary to go into details of how the Court of Final Appeal (Ribeiro PJ delivering the lead judgment) dealt with the cause of action of breach of the Implied Promise:-

“102. It is clear that as a matter of law, the implied promise to honour the Award exists as a contractual obligation separate and distinct from the obligations created by the underlying contract…

…

108. Moreover, in the present case, the two claims are governed by different systems of law.  Suing for breach of the implied promise is an aspect of enforcement (to which I shall return), regulated by the enforcing court according to the lex fori (here, Hong Kong law), to be distinguished from the arbitration concerning performance of the Agreement which was governed by PRC law, expressly chosen by the parties.

…

117. I turn next to Mr Gee’s [counsel for the Defendants] proposition that the damages claimed in the Action should be viewed as damages for loss of the profits of the development flowing from breach of the Agreement and so caught by the arbitration clause.  It is a suggestion which fails to recognise the fundamental difference between proceedings at the arbitration as opposed to the enforcement phase, and the range of remedies open to the enforcing court.

…

120. Conceptually, the parties’ submission to arbitration is contractual, giving a mandate to the arbitrators to resolve the disputes specified and containing a mutual promise, usually implied, that they will comply with the award.  Once the final award is made, the arbitrators’ mandate is exhausted and, if the award is not complied with, a fresh cause of action arises for breach of the implied promise to honour the award.  That cause of action lies within the enforcing court’s jurisdiction and is not within the power of the tribunal.  Procedurally, enforcement may be pursued summarily (under section 2GG) or by a common law action on the award, as provided for by section 40B(1)…

122. At the enforcement stage, in an action on the implied promise, the enforcing court may grant relief appropriate to the award.  If it is a monetary award for payment within the jurisdiction, it may simply be a judgment enforcing the award as a debt.  If it is a non-monetary award which has not been complied with, the court may fashion an apt remedy chosen from the full range of remedies available in an ordinary common law action…

126. In the present case, the tribunal made a non-monetary award requiring continued performance of the Agreement.  When it was discovered that the possibility of compelling such performance by requiring transfer of the shares had been frustrated as a result of the restructuring, the enforcing Court granted relief in the form of an award of damages.  The fact that there is very likely to be a significant overlap between such damages and whatever damages might have been awarded by the tribunal for breach of the Agreement, does not mean that the Court’s order “usurps” the function of the tribunal.  It is an order made at the enforcement phase, exercising the Court’s jurisdiction with a view to fashioning an appropriate remedy to give effect to the award, distinct from any remedy that might have been claimed in the arbitration.

…

128… The First Award was not merely about the validity of the Agreement.  The tribunal certainly did decide that the Agreement was valid and not illegal.  But it went much further.  It held that D1-D2 were in breach of the agreement in several ways and rejected the submission that continued performance was impossible, re-affirming the relief awarded.  It made it clear that it had fully adjudicated the case and that the First Award was final, recognising that the matter had reached the enforcement phase before the Hong Kong Court.

…

139. The Second Award also noted that ‘the recognition and enforcement of the earlier arbitral award’ was being carried out in the Hong Kong Court in accordance with Hong Kong legal procedures and refrained from commenting on the earlier award and the Hong Kong Court’s judgment.

…

141… Mr Gee’s suggestion that the awards were solely concerned with the validity is wholly unsustainable. Quite apart from finding that the Agreement was binding, the tribunal held that D1-D2 were in breach in the abovementioned respects. It awarded damages for the delay in delivering the land and made the order for continued performance as relief for the breaches. The Hong Kong Court translated the award into a judgment under the summary procedure and, after it was discovered that the restructuring had occurred, the Plaintiff started the common law action and sought damages as an alternative remedy in the enforcement proceedings. After failing against D1-D2 at trial but succeeding in the Court of Appeal, the Plaintiff was put to its election and elected for damages which were granted as a remedy within the power of the enforcing court.

142. Mr Gee’s argument that the arbitration was incomplete and that the Plaintiff ought to return to the arbitrators to seek an award of damages ignores the tribunal’s letter 27 July 2009 firmly refusing to entertain further proceedings (including proceedings for ‘damages or other appropriate reliefs’), asserting that the arbitration was final and comprehensive.” (emphasis added)

26.  In the circumstances, the Plaintiff’s Damages Claim proceeded to the stage of assessment of quantum.

III.  ASSESSMENT OF QUANTUM OF THE PLAINTIFF’S DAMAGES CLAIM

27.  At the stage of the assessment of quantum of the Plaintiff’s Damages Claim, pleadings were ordered for the assessment of quantum of the Plaintiff’s Damages Claim.  The Plaintiff applied for striking out part of the Defendants’ pleas in their Statement in Response.  The striking out application was allowed by Mimmie Chan J’s decision handed down on 3 August 2021 (“Mimmie Chan J’s Strike-out Decision”) and the appeal against it was dismissed by the Court of Appeal (Kwan VP and Yuen and Chow JJA) in its judgment handed down on 29 April 2022 (the “CA Strike-out Judgment”).

28.  There were two arguments struck out, referred to as the “PRC Law Argument” and the “New Arbitration Argument” respectively: see CA Strike-out Judgment §§7.1, 7.2, 8.1 and 9.1.  In summary:-

(1)  The PRC Law Argument was that “questions relating to the Plaintiff’s loss, including in respect of heads of loss, causation and remoteness, are governed by PRC law”; and “under the PRC law, failure to perform an arbitral award does not give rise to any right to damages”; and

(2)  The New Arbitration Argument was that “the Plaintiff should submit the underlying dispute to the arbitral tribunal to obtain an award which can be performed and enforce… or seek a ruling or direction as to how (if at all) the parties can continue to perform the Agreement, or accede to the defendants’ request to submit to arbitration in order to advance whatever claim it would be entitled to under PRC law and the terms of the Agreement”, and “in not doing the above, the Plaintiff has caused its own loss, or it has failed to mitigate its loss”.

29.  For the PRC Law Argument, in the CA Strike-out Judgment §18, the Court of Appeal held that as held by the Court of Final Appeal, the Implied Promise came into being under Hong Kong law and it was for the Hong Kong Court to fashion an apt remedy, that the governing law of the Implied Promise would be Hong Kong law, and so the law governing the assessment of quantum of the Plaintiff’s Damages Claim would be Hong Kong law.  Thus, the Court of Appeal affirmed Mimmie Chan J’s Strike-out Decision to strike out the PRC Law Argument.

30.  For the New Arbitration Argument, in §§22-23 of the CA Strike-out Judgment, the Court of Appeal held that there could be no mitigation even if the Plaintiff were to commence a new arbitration under the PRC law because according to the Defendants, under the PRC law, failure to perform an arbitral award would not give rise to any right to damages.  Further, the Court of Appeal held that the breach of Implied Promise was not a dispute arising from the Agreement and therefore was not subject to the arbitration agreement.  The Court of Appeal further noted that the Defendants’ request made to the tribunal for directions on how the Award should be performed and what relief could be granted was given a short shrift by its 27 July 2009 Letter, and there was nothing to suggest that a different answer would be forthcoming if the request were made by the Plaintiff.  Thus, the Court of Appeal also affirmed Mimmie Chan J’s Strike-out Decision  to strike out the New Arbitration Argument.

31.  The Defendants’ application and renewed application for leave to appeal were dismissed by the Court of Appeal and the Appeal Committee of the Court of Final Appeal in July 2022 and April 2023 respectively.

IV.  THE 3^RD ARBITRATION AND ANIT-ARBITRATION INJUNCTION IN HCCT 98/2022

32.  Despite the CA Strike-out Judgment, the matter did not proceed to assessment smoothly.  Shortly after the CA Strike-out Judgment, on 17 June 2022, the Defendants commenced yet another arbitration (the “3^rd Arbitration”) seeking the following orders:-

(1)  That the Agreement be terminated;

(2)  That upon the termination, the parties’ rights and obligations, including the rights to, and obligations to pay, compensation for loss, shall be determined by the PRC law;

(3)  That the compensation for loss arising from the claim made in the arbitration is a dispute arising from the performance of the Agreement, which the parties are contractually bound to submit for arbitration; and

(4)  That in relation to the compensation for loss, the Defendants’ liabilities should be limited to the principle of penal deposit or any amount as determined under the PRC law.

33.  On 3 November 2022, the Plaintiff commenced HCCT 98/2022 for an anti-arbitration injunction to restrain the Defendants from taking any steps to pursue the 3^rd Arbitration and to compel them to take steps to discontinue the 3^rd Arbitration.  By her judgment handed down on 18 May 2023 (“Mimmie Chan J’s Anti-Arbitration Injunction Judgment”), she left the question of whether the Defendants were entitled to terminate the Agreement for arbitration.  However, in relation to the obligation to pay compensation for loss (§§32(2), (3) and (4) above), her Ladyship granted the anti-arbitration injunction, for the reason stated at §58 of Mimmie Chan J’s Anti-Arbitration Injunction Judgment that:-

“… The Plaintiff has clearly shown that these issues are not covered by, and not within the scope of the arbitration clause of the Agreement, the Defendants’ rights under that clause have not been infringed, and any arbitration of such claims or assertions is in my judgment vexatious, oppressive and an abuse of process, in seeking to attack the judgments of the Hong Kong Courts, and undermine enforcement of the 1^st Award in Hong Kong…”

34.  On 9 November 2023, the arbitral tribunal issued an award in the 3^rd Arbitration ordering that the Agreement be terminated from the date of the award on the ground that the Agreement remained in a state of deadlock and the obligations under the 1^st Award were objectively incapable of actual performance.

V.  QUANTUM OF PLAINTIFF’S DAMAGES CLAIM ASSESSED

35.  Upon trial of the assessment of the Plaintiff’s Damages Claim in September 2023, Mimmie Chan J handed down judgment on 14 May 2024 followed by two rulings issued on 9 September 2024 and 15 October 2024 (the “Mimmie Chan J’s Quantum Judgment”), ordering the Defendants to pay the Plaintiff RMB169,044,298.25.  The assessment was made on the basis as if the 1^st Award had been complied with, (see §18 of the Mimmie Chan J’s Quantum Judgment).

36.  The Defendants’ appeal, and applications for leave to appeal and stay pending appeal have all been dismissed by the Court of Appeal and the Court of Final Appeal.  I shall refer to the Court of Appeal’s judgment handed down on 12 December 2025 dismissing the appeal as the “CA Quantum Judgment”, and the Court of Final Appeal’s judgment handed down on 1 September 2026 as the “CFA Quantum Judgment”.

VI.  THE NEW PRC ACTION

37.  Shortly after the handing down of the CA Quantum Judgment on 12 December 2025, on or around 5 January 2026, the Defendants commenced the New PRC Action, and made the Conduct Preservation Application.

38.  In the Statement of Complaint filed in the New PRC Action, the Defendants claim for the relief based on the Plaintiff’s infringement of the Defendants’ right: “判令被告 [that is, the Plaintiff herein] 返还因滥用诉权、规避仲裁管辖的侵权行为侵占的人民币1.8 亿元，或赔偿原告 [that is, the Defendants herein] 因被告上述侵权行为所造成损失人民币1.8 亿元（原告保留因被告侵权行为导致原告遭受进一步损失时追加请求金额的权利）”.  Essentially, by this relief, the amount the Hong Kong Court orders the Defendants to pay for the Plaintiff’s Damages Claim is the amount of loss suffered by the Defendants caused by the Plaintiff’s infringement.  I shall, at appropriate juncture below, explain what infringement the Defendants allege with reference to the Statement of Complaint.

39.  As regards the Conduct Preservation Application, it is an application ancillary to and in aid of the New PRC Action.  It seeks, among others:-

(1)  an anti-anti-suit injunction against the Plaintiff restraining the Plaintiff from applying to Hong Kong Court any order restraining the Defendants from commencing any claim or applying for any conduct preservation order from PRC Courts in respect of issues relating to the continued performance, termination and compensation of the Agreement; and

(2)  an anti-suit injunction against the Plaintiff restraining the Plaintiff from applying to the Hong Kong Court for enforcing any judgment in HCCL 13/2011 (including Mimmie Chan J’s Quantum Judgment and the CA Quantum Judgment) and from applying for any payment out of the funds paid by the Defendants into Hong Kong Court.

40.  On 15 April 2026, the Xiamen Court served the court documents on the Plaintiff.

41.  On 21 April 2026, the Plaintiff filed the Originating Summons herein and at the same time an ex parte on notice application for an interim anti-anti-anti-suit injunction order to restrain the Defendants from taking any steps to pursue the Conduct Preservation Application.  Mimmie Chan J acceded to the application.  On the return date before me on 24 April 2026, I granted an interlocutory injunction to restrain the Defendants from taking any further steps in the New PRC Action and to order them to take any necessary steps to stay the New PRC Action.

42.  Initially, the Xiamen Court scheduled a hearing to take place in June 2026.  That was cancelled as a result of the interim anti-suit injunction granted by me on 24 April 2026 upon consent (subject to some minor disagreements which I resolved at the hearing). 

43.  Subsequently, the Xiamen Court scheduled another hearing, which took place on 13 August 2026.  Upon my order made on 10 August 2026, at the hearing on 13 August 2026 before the Xiamen Court, the parties applied for an adjournment or a stay of the New PRC Action, but the applications were refused.

44.  On 21 August 2026, Xiamen Court informed the parties that a substantive hearing of the New PRC Action would take place on 18 September 2026.  Therefore, the Plaintiff filed the Summons for an interlocutory injunction compelling the Defendants to discontinue the New PRC Action, leading to the directions I gave on 31 August 2026 as mentioned at the outset.

VII.  LEGAL PRINCIPLES

45.  The general legal principles in relation to anti-suit injunction have been summarised by Recorder William Wong SC in Suen Kwai Kam v Central China Dragon Select Growth Fund [2020] HKCFI 69 at §25.  The following propositions are pertinent to the present application:-

(1)  “A person has no right not be sued in a particular forum, domestic or foreign, unless there is specific factor which gives him that right.”

(2)  “Anti-suit injunction will be granted only when the ends of justice require it.”

(3)  “In exercising the jurisdiction, regard must be had to comity and so that the jurisdiction is one which must be exercised with caution.”

(4)  “Account must be taken not only of injustice to the applicant if the respondent to the application is permitted to pursue foreign proceedings which are vexatious or oppressive, but also of injustice to the respondent if, by granting the injunction, he is deprived of any advantage in the foreign forum of which it would be unjust to deprive him.”

(5)  “A distinction is to be drawn between cases where the application for an anti-suit injunction is founded upon a contractual right and other cases, in which it is asserted that the foreign proceedings have been commenced in bad faith for the purpose of frustrating proceedings in Hong Kong.”

(6)  “Where the applicant is relying upon conduct of the other person which is unconscionable for some non-contractual reason, the law requires that the legitimate interest must be the existence of proceedings in Hong Kong which need to be protected by the grant of a restraining order.”

(7)  “The essential features which made it proper for a court to exercise its power to grant an anti-suit injunction are:

(a)  The applicant is a party to existing legal proceedings in Hong Kong;

(b)  The defendants have in bad faith commenced and propose to prosecute proceedings against the applicant in another jurisdiction for the purpose of frustrating or obstructing the proceedings in Hong Kong; and

(c)  The court considers that it is necessary in order to protect the legitimate interest of the applicant in the Hong Kong proceedings to grant the applicant restraining order against the defendants.”

(8)  “In considering whether the foreign proceedings are vexatious or oppressive, the juridical advantage of powers of enforcement in the foreign jurisdiction is a significant factor.”

46.  In relation to §§(7) and (8) above:-

(1)  “There is public interest in the finality of litigation and a court would grant an injunction restraining persons properly amenable to its jurisdiction from relitigating matters which have already been the subject of a judgment of the court of the forum”: see First Laser Limited v Fujian Enterprises (Holdings) Company Limited and Another [2025] HKCFI 1940 at §30 per DHCJ MK Liu.

(2)  “An [anti-suit injunction] may also be granted if the foreign proceedings are an illegitimate interference with the processes, jurisdiction, or judgments of the English court, or if an injunction is necessary for the protection of the processes, jurisdiction, and judgments of the English court, provided, of course, that it is in the interests of justice to do so. If an [anti-suit injunction] is justified on this basis it is not necessary independently to show vexation or oppression, and although vexation and oppression will often overlap in practice with illegitimate interference, they are not the same conceptually”: see First Laser Limited v Fujian Enterprises (Holdings) Company Limited and Another, supra at §31 citing Raphael QC, The Anti-Suit Injunction (2^nd edition) §4.66.

(3)  “The instances in which an [anti-suit injunction] may be granted on the basis of an abuse of the forum court’s process include where the defendant seeks to relitigate abroad a case in which judgment has already been obtained against him in the forum court”: see First Laser Limited v Fujian Enterprises (Holdings) Company Limited and Another, supra at §32.

(4)  “[A]n anti-suit injunction is even more justified when the foreign proceedings are seeking to reopen and frustrate the findings and rulings already made in the Hong Kong proceedings” (original emphasis): see Achieve Goal Holdings Limited v Zhong Xin Ore-Metal Holding Company Limited [2022] HKCFI 2638 at §32 per Wilson Chan J.

(5)  The progress of the foreign proceedings and the progress of the Hong Kong proceedings are relevant considerations: Achieve Goal Holdings Limited v Zhong Xin Ore-Metal Holding Company Limited, supra at §§54-55. 

(6)  There is no absolute need for the Hong Kong Court to wait for the result of a challenge to jurisdiction in foreign court before considering any anti-suit injunction: Achieve Goal Holdings Limited v Zhong Xin Ore-Metal Holding Company Limited, supra at §60.  On the contrary, if an application has to be made to the foreign court first, the Hong Kong Court may be put into a difficult situation – it may be regarded as reviewing the foreign court’s decision in breach of comity, and a combination of delay and participation may even make it more difficult for the Hong Kong Court which would otherwise grant the anti-suit injunction.  These are all relevant considerations: see China City Construction (International) Co Ltd (In Creditors’ Voluntary Liquidation) and Another v China City Construction & Development Co (HK) Ltd [2025] 3 HKC 415 at §§51-54 per DHCJ Yuen.

(7)  “The [Hong Kong] court may grant an injunction to prevent a party bound by the res judicata or issue estoppel effect of [a Hong Kong] judgment relitigating the underlying dispute or issue abroad. This extends to litigating abroad matters which could and should have been litigated as part of the original action. Granting an anti-suit injunction for this purpose both forwards an important [Hong Kong] public policy of preventing collateral attack on a final judgment by a disappointed litigant, prevents relitigation of determined issues, and gives effect to a substantive right not to be sued which has been created by the relevant judgment”: see Gee, Commercial Injunctions (7^th edition) §14-094.[1]

47.  As shown above, being vexation or oppression can be a ground for an anti-suit injunction.  Mr Chain submits that for vexation or oppression, the applicant has to establish that Hong Kong Court is the natural forum.  With respect, I disagree.  While in most anti-suit cases, forum is relied upon as vexation or oppression, it does not follow that forum is an essential element for vexation or oppression.  A few examples of vexation or oppression are given in Dicey, Morris & Collins, The Conflict of Laws (16^th edition) §12-132, with which I endorse because they are consistent with the meanings as has been understood by the Court in striking out: see Hong Kong Civil Procedure 2026 Volume 1 §§18/19/7[2] and 18/19/17[3], and I see no reason why different meanings would be accorded to such words in an anti-suit injunction context.  The examples include:-

(1)  “bad faith in the institution of the proceedings”;

(2)  “bringing proceedings which seek to undermine, or frustrate the enforcement of, [a Hong Kong] judgment given in the proceedings in which the respondent played a full part”; and

(3)  “bringing proceedings which seek to undermine or hamper the enforcement of [an arbitral award enforced or enforceable in Hong Kong]”.

48.  I stress that it is not the proceedings itself that are vexatious or oppressive.  Rather, it is the “institution”, “bringing” and/or pursuing such proceedings, in proper context, that may be.

49.  Further, as shown above, issue estoppel can be another ground for an anti-suit injunction:-

(1)  For issue estoppel, it has to be established that (a) an identical issue has been decided; (b) the decision is a final decision of a competent court; and (c) the parties to the decision (or their privies) are identical: see Company A and Others v Company D and Others [2019] HKCFI 367 at §25 per Recorder Eugene Fung SC (as he then was); and

(2)  For identifying the issue, if the previous decision “determined an issue in a cause of action as an essential step in its reasoning”, that issue is regarded as having been determined for issue estoppel: see Capital Wealth Finance Company Limited v Lai Yueh-Hsing and Others, HCA 686/2012, 31 July 2015 at §23 per Anthony Chan J (as he then was).

50.  For an anti-suit injunction against a “single forum” case, that is, a case where the foreign claims can be brought only in the foreign forum and not in Hong Kong, as submitted by Mr Chain, “extra caution” and “a more than usually compelling basis” is needed, referring to Dicey, Morris and Collins, supra at §12-137; British Airways Board v Laker Airways Ltd. And Others [1985] 1 A.C. 58 at 80B-D per Lord Diplock; Vitol Bahrain EC v Nasdec General Trading LLC and Others [2013] EWHC 3359 (Comm) at §50 per Males J. 

VIII.  ANALYSIS

51.  Upon the above legal principles, it is important to consider the basis of the New PRC Action.

A. The basis for the New PRC Action

52.  It is necessary to set out in detail the Statement of Complaint filed in the New PRC Action.  The Defendants herein are the “原告” therein, and the Plaintiff herein is the “被告” therein:-

(1)  “原告有权确保任何关于合同履行的争议——包括如何继续履行、能否继续履行、无法继续履行的法律后果、违约损失赔偿的计算标准和金额等所有实体问题——都应在贸仲的管辖框架下，适用中国内地法律规则，通过仲裁程序得到解决” (page 3 of the Statement of Complaint).

(2)  “在中国内地法律体系下…赔偿范围受到合同法律关系的约束…而不是被置于完全不同的香港法律体系之下由香港法院按照香港法律进行认定” (page 4 of the Statement of Complaint).

(3)  “原告有权在仲裁程序中…赔偿请求的合法性、合理性进行抗辩，对损失计算方法提出异议，主张减损义务，援引合同约定的责任限制条款等” (page 4 of the Statement of Complaint).

(4)  “如前所述， 0389 号裁决 [that is, the Award] 裁定原告继续履行与被告之间的22号地块合同。因此，‘履行0389 号仲裁裁决’ 的实质就是 ‘履行22 号地块合同’。而关于22 号地块合同能否继续履行、无法履行的法律后果及可能的违约赔偿等问题，均属于 ‘合同履行相关争议’，完全由仲裁条款覆盖、应当由贸仲管辖。基于此，与 ‘履行0389 号仲裁裁决’ 的全部相关争议仍应由贸仲管辖” (emphasis added)　(page 4 of the Statement of Complaint).

(5)  “被告于2008 年转向香港法院，以‘违反履行仲裁裁决的默示承诺’为由提起诉讼诉由。被告恶意利用了香港普通法下存在一个 ‘违反默示承诺’的诉由，将本应由贸仲管辖的‘合同履行争议’ 转化为所谓 ‘违反默示承诺’的侵权之诉，从而将合同履行问题切割出仲裁框架，交由香港法院迸行实质性审理，从而架空了双方在先约定的合法有效的争议解决机制” (emphasis added) (pages 4-5 of the Statement of Complaint).

(6)  “更为关键的是，香港法院在审理该案时，对合同履行相关的实体争议进行了全面的审查与裁判。如前所述，香港法院在 [2021] HKCFI 2225 [that is, Mimmie Chan J’s Quantum Judgment] 决定中，明确釆用以 ‘假定合同正常履约所能获得的开发利润’ 作为损失计算方式。然而，这一计算方式实质等同于合同违约损失的计算逻辑，本质上是对‘是否存在违约行为、违约程度如何、违约赔偿范围及金额’ 等合同履行的实体争议进行了实质裁判，而该等问题本应由贸仲依照仲裁条款，依据中国内地法律进行裁决” (page 5 of the Statement of Complaint).

(7)  “被告… 恶意规避仲裁管辖的法定及约定效力… 不仅严重违反了 ‘或裁或审’ 的基本原则及双方仲裁协议的明确约定，亦构成对诉讼权利的滥用，侵害了申清人依据仲裁条款享有的各项合法权益” (page 5 of the Statement of Complaint).

(8)  “根据《民法典》第一千一百六十五条： ‘行为人因过错侵害他人民事权益造成损害的，应当承担侵权责任。’ 被告的行为完全符合一般民事侵权行为的构成要件。同时，根据《最高人民法院关于适用〈中华人民共和国民法典〉总则编若干问题的解释》第三条规定， ‘行为人以损害国家利益、社合公共利益、他人合法权益为主要目的行使民事权利的，人民法院应当认定构成滥用民事权利。构成滥用民事权利的，人民法院应当认定该滥用行为不发生相应的法律效力。滥用民事权利造成损害的，依照民法典第七编等有关规定处理。’ 据此，被告以损害原告合法权益为目的，滥用诉讼权利，规避仲裁管辖，应认定为滥用民事权利，其行为不发生合法效力，造成损害的应承担侵权责任” (pages 5-6 of the Statement of Complaint).

(9)  “被告明知双方约定了仲裁条款，明知其可以向贸仲主张违约赔偿，却故意不向贸仲提起仲裁，反而转向香港法院提起诉讼，利用普通法下 ‘违反默示承诺’ 诉由，规避仲裁管辖约束。被告的主观恶意明显，具有明显的过错” (page 8 of the Statement of Complaint).

(10)  “本案诉讼请求基于被告独立的侵权行为，而非22 号地块合同项下的违约责任” (page 8 of the Statement of Complaint).

(11)  “需要特別強调的是，原告在本案訴訟中对于香港法院判決本身的正确与否不作評价” (page 9 of the Statement of Complaint).

53.  The fundamental tenets of the Statement of Complaint, distilled from the extracts in §52 above, are that:-

(1)  The Agreement is governed by the PRC law and is subject to arbitration agreement (see §§(1) – (3) above);

(2)  Enforcement of the 1^st Award is in substance the same as the performance of the Agreement.  Therefore, the enforcement of the 1^st Award should, like the Agreement, be governed by the PRC law and is subject to the arbitration agreement (see §(4) above);

(3)  In assessing the quantum of the Plaintiff’s Damages Claim, the Hong Kong Court was in essence assessing damages for breach of the Agreement (see §(6) above);

(4)  The Plaintiff’s claim based on the common law cause of action of the Implied Promise was malicious because it dressed a de facto action over the performance of the Agreement as a common law action so that the Plaintiff would evade the parties’ agreement that the Agreement should be governed by the PRC law and the arbitration agreement (see §§(5) and (7) above);and

(5)  The Plaintiff intentionally and maliciously evaded the arbitration under the PRC law and has thereby infringed the Defendants’ right to have the matter decided by arbitration under the PRC law (see §§(8) and (9) above).

54.  Based on the above, the relief the Defendants seek in the New PRC Action is, as mentioned in §38, that the amount the Hong Kong Court orders the Defendants to pay for the Plaintiff’s Damages Claim is the amount of loss suffered by the Defendants as a result of the Plaintiff’s infringement.

55.  In August 2026, the Defendants allege that they would, subject to Court’s leave, apply for amending the Statement of Complaint.  However, the draft amended Statement of Complaint produced for my consideration is, in my view, the old wine in a new bottle.  The gist of the amendment can be gleaned from the extracts below:-

(1)  The substantive relief now sought is: “判令被告赔偿原告因被告侵权行为所造成的损失人民币1.8 亿元（原告保留根据案件事实进展及损失确定情况修改主张的损失金额的权利）”.  It is still aimed at the very amount the Hong Kong Court orders the Defendants to pay.

(2)  “如前所述， 0389号裁决裁定原告继续履行与被告之间的22 号地块合同。因此，‘履行0389号仲裁裁决’ 的实质就是‘履行22号地块合同’。而关于22 号地块合同能否继续履行、无法履行的法律后果及可能的违约赔偿等问题，均属于 ‘合同履行相关争议’，完全由仲裁条款覆盖、应当由贸仲管辖。基于此，与 ‘履行0389 号仲裁裁决’的全部相关争议仍应由贸仲管辖。” (emphasis added) Still, the Defendants are asserting as if the matter of enforcement of the 1^st Award is in substance the same as enforcement of the Agreement.

(3)  “然而，在获得0389 号裁决后，被告并未就22 号地块合同无法继续履行的法律后果等问题向贸仲申请仲裁。相反，被告于2008 年转向香港法院，以‘违反履行仲裁裁决的默示承诺’为由提起诉讼。然而，这一诉因在中国内地法律框架下并不存在。被告正是利用了不同法律制度之间的差异，在仲裁机制之外另行主张相关请求，规避了双方在先约定的合法有效的争议解决机制和准据法。需要强调的是，即使被告在香港法律框架下享有此类诉权，但并不意味着就因此免除其根据中国内地法律所应承担的合同义务和法律责任。” Still, the Defendants are claiming that the Plaintiff’s Damages Claim is taking advantage of the Hong Kong common law cause of action of the Implied Promise to evade the parties’ arbitration agreement and the PRC law, although the Defendants no longer use the word “malicious” and emphasise that whatever the Hong Kong law is, the PRC law is still binding on the parties.  In my view, first, even without the word “malicious”, the Defendants are still claiming that the Plaintiff uses the Hong Kong law to evade the parties’ arbitration agreement and the PRC law.  The substance is still malice or put mildly, misuse of the law and abuse of process.  However, if that is what the Hong Kong law is, it cannot be said to be a misuse or an abuse.  Second, more fundamentally, the Defendants are still asserting as if the matter of enforcement of the 1^st Award is the same as enforcement of the Agreement, without mentioning that now the matter is a matter of enforcement for the enforcing Court in Hong Kong.

(4)  “更为关键的是，该 ‘默示承诺’的核心内容，是要求本案原告应按照0389号仲裁裁决的判令以继续履行22号地块合同。根据被告在香港案件中的主张，且正如香港法院于2024 年5 月14 日所作出的裁决，损害赔偿的评估应基于以下基础进行：即2006 年时，在双方继续履行22号地块合同后，被告本可取得香港利景兴业（厦门) 有限公司的股权，并有权获得开发22号地块所产生的收益 （尽管本案原告对于继续履行22 块地块合同相关后果的假设并不认可）。被告也正是基于此提出其损失计算逻辑。”  The Defendants’ complaint remains that the assessment of loss would lead to the same outcome of the enforcement of the Agreement. 

(5)  “然而，根据中国内地法律，‘是否存在违约行为、违约程度如何、违约赔偿范围及金额’等合同履行的实体争议本应依照仲裁条款，由贸仲依据中国内地法律进行裁决。被告明知仲裁条款的存在及其约束力，却故意以‘违反履行仲裁裁决的默示承诺’此项中国内地法律体系下并不存在的诉因提起香港诉讼，恶意规避仲裁管辖的法定及约定效力，而其本应通过贸仲仲裁程序主张和确认违约赔偿。该行为不仅严重违反了‘或裁或审’的基本原则，亦绕开双方仲裁协议的明确约定，构成对诉讼权利的滥用，侵害了原告依据仲裁条款享有的各项合法权益。”  The Defendants again make the allegation of malice in relation to the Plaintiff’s Damages Claim.

(6)  “原告认为，如果贸仲已就22 号地块合同终止所产生之损害赔偿责任作出认定，那么案涉侵权行为对原告所造成的最终实际损失，应主要体现为以下两种情形之间的差额：1) 香港法院最终认定原告所应承担的赔偿数额，以及原告为应对香港法院 ‘违反履行仲裁裁决的默示承诺’ 之诉所支出的各种成本（包括但不限于律师费、专家费等）; 2) 贸仲最终认定原告所应承担的赔偿数额，以及原告为应对贸仲仲裁程序所支出相应成本。即，上述两者之间的差额，构成案涉侵权行为对原告所造成的最终实际损失。”  However, first, by the 27 July 2009 Letter, the arbitration tribunal already made it clear that the arbitration concluded, and that nothing was left for determination under the PRC law.  This would mean that the amount to be awarded to the Plaintiff by the tribunal would be nil.  Thus, the calculation proposed in the Amended Statement of Complaint, based on “2) 贸仲最终认定原告所应承担的赔偿数额” simply would mean that whatever the Defendants are ordered by the Hong Kong Court to pay the Plaintiff’s Damages Claim, the Plaintiff would have to pay back the Defendant.  Second, equally fundamental is, again, that the Defendants are asserting as if the Agreement may still be arbitrated upon by the tribunal, which is not true.

56.  For the sake of completeness, I should also mention that the Defendants have also proposed amendment to the Conduct Preservation Application.  The gist of the amendment is that they no longer seek any injunction, but seeks a conduct preservation order to ensure that the Plaintiff would have the RMB180 million to pay back the Defendants.

B. Interference with Hong Kong procedures, bad faith, vexatious and oppressive?

57.  Bearing in mind that I should exercise extra caution and requiring a more than usually compelling basis, in my view:-

(1)  It is clear, as held by the CFA Judgment, that the common law cause of action of the Implied Promise was available under Hong Kong law to enforce the 1^st Award, and that the Plaintiff’s common law claim was enforcement of the 1^st Award but not enforcement of the Agreement underlying the 1^st Award.  The two are different in substance.  In terms of their natures, the former is Hong Kong’s enforcement of an arbitral award and the latter is the parties’ enforcement of a contract.  In terms of their substance, the former is governed by the law of the enforcing court (Hong Kong law), and the latter is governed by the law of the parties’ own choice (PRC law).  Not only did the Defendants fail to mention these material distinctions, on the contrary, the Defendants inaccurately equates the enforcement of the 1^st Award and its substance to the enforcement of the Agreement and its substance (see §55(2) above).

(2)  Since it was the Plaintiff’s rights based on the common law cause of action of the Implied Promise, the Plaintiff was entitled to litigate on this cause of action.  Put another way, it was the Plaintiff’s right to enforce the 1^st Award.  To say that the Plaintiff was malicious in exercising its right is, without more, unacceptable.  It is notable that the attempt to enforce the 1^st Award in the PRC had been rejected on the basis that the Defendants are Hong Kong companies (see §16 above), and thus there can be no complaint that the Plaintiff came to Hong Kong Court for the enforcement.

(3)  It must be remembered that the Plaintiff resorted to the common law claim of breach of the Implied Promise because “the possibility of compelling such performance by requiring transfer of the shares had been frustrated as a result of the [Restructuring]”: see §126 of the CFA Judgment quoted in §25 above.  It is, in my view, disingenuous for the Defendant now to complain that the Plaintiff’s pursuit of this cause of action, without more, would be malicious.

(4)  That its procedures are used maliciously to evade the obligations under another jurisdiction, and consequently, may constitute abuse of process of Hong Kong Court, could and should have been raised by the Defendants in opposing or applying to strike out the common law claim in HCCL 13/2011.  However, not only did the Defendants never raise this; on the contrary, the Defendants engaged in the battlefields with the Plaintiff at courts of all levels in Hong Kong about the Plaintiff’s claim which now, more than 15 years after it was commenced, the Defendants suddenly say has been malicious.

(5)  If the Defendants are suggesting that it raised this allegation of malice only recently because it is only recently that Mimmie Chan J’s Quantum Judgment confirmed by the CA Quantum Judgment that the assessment of the Plaintiff’s Damages Claim was based as if the 1^st Awrad had been performed, I am unable to accept such suggestion.  This is because the possibility, or the probability, of such assessment had already been raised by the Defendants’ counsel 15 years ago as recorded in §117 of the CFA Judgment (see §25 above), and in response to such submissions, the CFA made it clear at §126 that this would not mean usurping the tribunal’s role.  If the Defendants were genuine in pursuing the New PRC Action, they themselves aware of such possibility or probability and/or the CFA telling them of the same in the CFA Judgment 15 years ago, the Defendants should not have engaged in the battles with the Plaintiff and should have pursued the New PRC Action then.

(6)  That the assessment would lead to an amount as if the Agreement is performed, in itself, cannot mean that there is malice.  As held in the CFA Judgment §§122 and 126 (see §25 above), this is the law of Hong Kong on how to fashion the remedy for the enforcement of the 1^st Award based on the breach of the Implied Promise, and it just happens that the remedy fashioned for the enforcement of the 1^st Award in such manner would lead to a result (assuming the Defendants are correct) that is the same as or similar to the enforcement of the Agreement.  The law is a matter for the Hong Kong Court, not even for the Plaintiff.  The proposition that because the assessment leads to such a result, so the Plaintiff’s common law claim is malicious, is tantamount to saying that the Hong Kong Court has deliberately ignored the parties’ arbitration agreement.  This cannot be correct because: (a) the determination of the parties’ rights and obligations under the Agreement has ended under the 1^st Award, and the enforcement of the 1^st Award in Hong Kong is a matter for the Hong Kong Courts, which have jurisdiction over the enforcement process, and therefore, it is not ignoring the parties’ arbitration agreement; and (b) the Hong Kong Courts simply apply the law as it is or as it has found in assessing the quantum, and any suggestion that applying the law would somehow be translated into a party’s malicious claim is absurd.

(7)  Even if the Plaintiff knew at the beginning that the law of assessment would be like that and have that effect as if the Agreement itself was litigated upon, it does not follow that the Plaintiff was malicious.  Again, as explained above, the Plaintiff has been exercising its right of enforcement of the 1^st Award under the Hong Kong jurisdiction.  One cannot say that despite having the right, he or she cannot exercise it because the outcome of the exercise of the right would lead to a certain result, or that exercise of such right is malicious.

(8)  From the Statement of Complaint, there is no other reason provided for saying that the Plaintiff was malicious in prosecuting the common law claim.  Stripped to its core, the basis of the Statement of Complaint is the commencement of the Plaintiff’s common law action based on the Implied Promise in itself.  In other words, according to the Defendants’ logic, once the Plaintiff exercises its right to enforce the 1^st Award based on the common law action of the Implied Promise, it should be restrained as malicious.  This, in my view, is a blatant attempt to use foreign proceedings to interfere with, undermine and frustrate the Hong Kong Court’s process, and hamper the enforcement of the 1^st Award in Hong Kong.

(9)  Not only that.  The relief the Defendants seek in the Statement of Complaint and the Conduct Preservation Application has the effect of destroying any award made in the Plaintiff’s Damages Claim.  Viewed in the context of the matters above, I find that by commencing and pursuing the New PRC Action, the Defendants are using the Xiamen Court and PRC law to interfere with, undermine and frustrate the Hong Kong Court’s process, and hamper the enforcement of the 1^st Award in Hong Kong.

(10)  I also find that the New PRC Action was instituted with improper motives and thus, in my view, in bad faith.

(11)  I also find that commencing and pursuing the New PRC Action is, in my view, vexatious and oppressive. 

(12)  I stress that I am not saying that any claim similar to the New PRC Action would lead to a finding as in §§(9)-(11) above.  It depends on the facts of the particular case.  For example, if shortly after the Plaintiff commenced the common law claim of the Implied Promise, the Defendants did not engage themselves with the Plaintiff in Hong Kong and/or rather commenced a claim similar to the New PRC Action without inaccurately equating a claim to enforce the 1^st Award in the enforcing jurisdiction to a claim to enforce the Agreement, it may well be a different landscape.  The present situation, however, is, objectively viewed, that the Defendants “輸打贏要” (or “heads I win, tails you lose”), that they have found themselves on the losing side in Hong Kong, they do not like this result, and they go somewhere else to evade this result. 

(13)  This is in stark contrast to the Plaintiff’s Damages Claim – the Plaintiff (a) complied with the arbitration agreement; (b) obtained the 1^st Award; (c) came to Hong Kong for the Statutory Judgment because on the Plaintiff’s application to enforce the 1^st Award in the PRC the PRC Court declined on the ground that that the Defendants were Hong Kong companies; (d) just found itself trapped in the Restructuring deployed by the Defendants to evade the relief granted in the 1^st Award and the Statutory Judgment; and (e) therefore resorted to other remedies in the course of the enforcement of the 1^st Award in the enforcing jurisdiction (that is, Hong Kong) while the tribunal, by the 27 July 2009 Letter, told the parties that there was nothing for them to arbitrate in relation to the enforcement.  The common law cause of action of the Implied Promise has essentially become the only means for the Plaintiff.  Further, the Defendants have been fighting the Plaintiff’s Hong Kong proceedings in the Hong Kong courts at all levels.  

C.  Issue estoppel and res judicata?

58.  Further or alternatively, bearing in mind that I should exercise extra caution and requiring a more than usually compelling basis, I find that by the New PRC Action, the Defendants relitigate the underlying issues already determined by Hong Kong Courts, for the following reasons:-

(1)  As the Hong Kong Courts have already determined in the CFA Judgment, Mimmie Chan J’s Strike-out Decision, Mimmie Chan J’s Anti-Arbitration Injunction Judgment and the CA Strike-out Judgment,  the parties to the 1^st Award have been at the stage of enforcement of the 1^st Award, and the Plaintiff’s common law claim of the Implied Promise is for enforcing the 1^st Award at this stage of enforcement.  The Agreement is irrelevant to the enforcement of the 1^st Award.  The Defendants do not (and cannot) challenge this even in the Statement of Complaint.

(2)  In the Statement of Complaint, however, the Defendants present the matter as if the Plaintiff’s common law claim of the Implied Promise (including the Plaintiff’s Damages Claim thereunder) is in substance a claim based on the Agreement (see §54(2) above), (a) omitting, deliberately or not, to mention the material distinction between enforcement of the Agreement on the one hand and enforcement of the 1^st Award on the other; and (b) also omitting, deliberately or not, to mention the fact that even the arbitration tribunal had, by its 27 July 2009 Letter, ruled that “the arbitral tribunal adjudicated the case fully”:-

“The arbitral tribunal adjudicated the case fully... After investigation, the [First Award] is final, there was no mistake in relation to writing, typing or calculation which needs to be corrected. Also the arbitral tribunal in the Award did not leave out any matter which would need to be further determined according to the PRC Arbitration Law and the Arbitration Rules of the Arbitration Commission. Accordingly, the arbitral tribunal does not accept the abovementioned application of [the Defendants].” (emphasis added)

(3)  Having equated the Plaintiff’s Damages Claim to enforce the 1^st Award to a claim to enforce the Agreement, the Defendants then contend that the Plaintiff’s claim should be governed by the PRC law and subject to the arbitration agreement. 

(4)  The Court should look at the substance rather than form in identifying the issue, bearing in mind, though, the Court should be cautious in identifying issued determined, or to be determined, by a foreign court: see Yuen and Chan (as Liquidators of RZ3262019 Ltd) v Zhou Ying Investments Group [2025] 5 HKLRD 714 at §53 (confirmed by the Court of Appeal in its dismissal of the application for leave in [2026] HKCA 1365 at §45(3)).

(5)  Having considered the history of the litigation and the Statement of Complaint itself, the commencement and pursuit of the New PRC Action, in my view, is plainly and obviously a disingenuous attempt to dress the issue of enforcement of the 1^st Award as an issue of enforcement of the Agreement.  This is, in my view, plainly and obviously a disingenuous attempt collaterally, if not directly, to attack the Hong Kong Courts’ repeated findings that the Plaintiff’s Damages Claim is a common law action to enforce the 1^st Award based on Hong Kong law but not a claim to enforce the underlying Agreement.

(6)  It follows that the New PRC Action is, in substance, plainly and obviously an attempt to relitigate the issue (namely, the dispute arising from the Agreement) determined by the arbitration tribunal which already said it had determined, and also an attempt to relitigate the issue determined by the Hong Kong Courts (namely, how the 1^st Award should be enforced), which already said that the matters now are for the Hong Kong Courts to determine in accordance with the Hong Kong law. 

(7)  The finding of issue estoppel reinforces my finding of interference with the Hong Kong process, bad faith and vexatious and oppressive above.

59.  I stress that I am not saying that any claim similar to the New PRC Action would give rise to issue estoppel or res judicata.  It depends on the facts of the particular case.  For example, if shortly after the Plaintiff commenced the common law claim of the Implied Promise, the Defendants did not engage themselves with the Plaintiff in Hong Kong and/or rather commenced a claim similar to the New PRC Action without inaccurately equating a claim to enforce the 1^st Award in the enforcing jurisdiction to a claim to enforce the Agreement, it might have been that, as Mr Chain in his valiant efforts argues, such a claim in the PRC Court is a genuine claim pursued under the PRC law without any attempt to determine any issues that would be issues for the Hong Kong common law cause of the Implied Promise. 

60.  Lastly, as regards the Defendants’ PRC law opinion on the merits of the New PRC Action and the Conduct Preservation Application, the evidence, at most, establishes that there is indeed a viable, independent cause of action under the PRC law for the New PRC Action.  However, I am not concerned with that.  I am concerned with the Defendants’ conduct in brining and pursuing the New PRC Action.

61.  In this regard, and for the avoidance of doubt, my above findings and views are concerning the Defendants’ conduct, namely, “instituting”, “brining” and pursuing the New PRC Action.  As a matter of comity, in no way I am expressing any view on the New PRC Action itself or the PRC law itself.  They at most provide the context for one to understand the Defendants’ conduct. 

D. Exercise of discretion

62.  The next question for me is whether I should exercise the discretion to grant the injunction sought against the Defendants.  With my findings and views above, and bearing in mind that I should exercise extra caution and requiring a more than usually compelling basis, I see every reason to exercise the discretion to grant the injunction sought.  I do not see that comity would be breached. 

63.  On the contrary, I take the view that stopping a party from using foreign court proceedings with improper motives is an example of comity – when the Hong Kong Court is aware that a person, over whom it has jurisdiction, is misusing foreign court proceedings, it would only be contrary to comity if the Hong Kong Court sits there and does nothing, while it would clearly be conducive to comity when it stops such a person from misusing the foreign court proceedings.  A fortiori, when the improper motives include attacking another court’s judgments and/or procedures, since such attacks would mean that the foreign court proceedings would be misused by the party to attack another jurisdiction contrary to comity.

IX.  CONCLUSION

64.  In the circumstances, on the Originating Summons, I make the following order:-

(1)  Subject to (2) below, the Defendants be restrained from taking any steps to pursue the New PRC Action or any claims or reliefs therein, including the Statement of Complaint, the draft Amended Statement of Complaint and the reliefs sought in the Conduct Preservation Application and the draft Amended Conduct Preservation Application; and

(2)  the Defendants do take all necessary steps to discontinue the New PRC Action now and immediately without delay and in any event no later than 18 September 2026.

65.  Since I have determined the Originating Summons, I make no order on the Summons except for costs.

66.  I make a costs order nisi that the Defendants shall pay the Plaintiff costs of the Originating Summons and the Summons, with certificate for three counsel, to be summarily assessed on paper.  Further, given the Defendants’ conduct (vexatious, oppressive and relitigating on determined issues), I find it appropriate to order indemnity basis, subject to any further submissions in any application to vary the costs order nisi (if any).

67.  For the paper assessment, the Plaintiff shall lodge and serve a statement of costs within 14 days from upon the costs order nisi becoming absolute, and the Defendants shall lodge and serve a list of objections within 14 days thereafter.

68.  Lastly, I thank all the counsel again for their thorough and able assistance promptly given to the Court.