北京禾亨科技有限公司 v. 曹维运 AND ANOTHER

HCMP 924/2025

[2026] HKCFI 3375

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 924 OF 2025

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BETWEEN

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J U D G M E N T

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A. INTRODUCTION

1.  In this case, the Plaintiff alleges that the 1^st Defendant misappropriated a total sum of RMB12,000,000 which was transferred from the Plaintiff’s bank account to a company wholly owned by the 1^st Defendant. The Plaintiff has commenced proceedings in the PRC against the 1^st Defendant for the recovery of the said sum on the ground of unjust enrichment.

2.  On 5 June 2025, the Plaintiff obtained, on an ex parte basis before Deputy High Court Judge Alan Kwong, a Mareva injunction against the 1^st Defendant and a Chabra injunction against the 2^nd Defendant (being the 1^st Defendant’s wholly-owned company) up to the value of RMB12,000,000 in aid of the PRC proceedings (“Injunction Order”). On 13 June 2025, the Injunction Order was continued by Deputy High Court Judge Grace Chow by the parties’ consent.

3.  This is the substantive hearing of the following applications:-

(1) The Plaintiff’s Originating Summons dated 5 June 2025 (“OS”) for the Injunction Order.

(2) The Plaintiff’s Summons dated 9 June 2025 (“Continuation Summons”) for continuation of the Injunction Order.

(3) The Plaintiff’s Summons dated 21 July 2025 (“Disclosure Summons”) for an order that the Defendants comply with their disclosure obligations.

(4) The Defendants’ Summons dated 23 July 2025 (“Stay Summons”) for a stay of their disclosure obligations under the Injunction Order pending determination of the OS.

4.  The Defendants oppose the continuation of the Injunction Order primarily on the ground of material non-disclosure. The Defendants further submit that, having regard to the circumstances of the case, there is no adequate evidential basis to suggest any real risk of dissipation warranting the continuation of the Mareva injunction.

B. BACKGROUND

5.  The Plaintiff is a limited company incorporated in PRC. Since its incorporation in May 2023, Mr. 季鵬坤 (“Ji”) has been its sole shareholder and legal representative.

6.  The 1^st Defendant is the sole shareholder and director of the 2^nd Defendant.

7.  By a 委托管理协议dated 28 May 2024 (“Management Agreement”), the Plaintiff came under the control and operation of 北京慈惠立得能源科技中心 (有限合伙) (“Beijing Partnership”, together with its subsidiaries, “Group”). The Beijing Partnership is in turn 99.75% owned by Mr. Li Fu (“Li”). According to the Plaintiff, the purpose of the Management Agreement was to facilitate its investment in the new energy sector without disclosing the identities of Li or the Beijing Partnership.

8.  The 1^st Defendant was at all material times the legal representative of a number of subsidiaries controlled and/or owned by the Beijing Partnership, including:-

(1) 氢立得（北京）能源科技有限公司 (“氢立得”) (50% owned by the Beijing Partnership and 25% by the 1^st Defendant);

(2) 北京氢联高科能源科技有限公司 (“氢联高科”) (91% owned by 氢立得); and

(3) 新疆鑫航联新能源科技有限公司 (“新疆鑫航联”) (100% owned by 北京氢联).

9.  According to the Defendants, the 1^st Defendant was responsible for setting up the corporate structure of the Group, including the establishment of (inter alia) the Beijing Partnership, the Plaintiff, 氢立得, 氢联高科 and 新疆鑫航联.

10.  The 1^st Defendant had control of various operational assets of the Plaintiff, including two USB keys for the operation of the Plaintiff’s bank account (one for initiating a transaction and the other for approving the transaction). Between 14 August 2024 and 25 November 2024, the 1^st Defendant procured the transfer of three sums totalling RMB12,000,000 from the Plaintiff’s bank account to 天津伟智科技有限公司 (“天津伟智”), a PRC company wholly owned by him (“Impugned Transfers”).

11.  According to the Plaintiff (not disputed by the Defendants), since 14 August 2024, 天津伟智 transferred a total sum of RMB16,960,000 to the 1^st Defendant.

12.  On 30 April 2025, the Plaintiff commenced proceedings against the 1^st Defendant in the People’s Court of Tianjin Binhai New District (天津市滨海新区人民法院) (“PRC Court”) to recover the sum of the Impugned Transfers on the ground of unjust enrichment (不當得利). The Plaintiff also applied for a preservation order to freeze the bank accounts of 天津伟智 and the 1^st Defendant.

13.  On 16 May 2025, the PRC Court accepted (受理) the Plaintiff’s claim under the case number (2025) 津 0116 民初 11228 号 (“PRC Proceedings”).

14.  On 5 June 2025 and 24 June 2025 respectively, the PRC Court granted freezing orders against the 1^st and 2^nd Defendants. According to a notice issued by the PRC Court dated 19 June 2025, the account of 天津伟智 into which the sum of the Impugned Transfers was paid currently has a standing balance of RMB6,807.25.

15.  On 5 June 2025, the Plaintiff commenced the present action by OS and obtained the Injunction Order on an ex parte basis. The Injunction Order provided, inter alia, that the Defendants shall give disclosure in writing of all his or its assets of an individual value of HK$10,000 or more in Hong Kong within 14 days after service of the order.

16.  On 9 June 2025, the Plaintiff took out the Continuation Summons. On 13 June 2025, the Injunction Order was continued by consent.

17.  On 21 July 2025 and 23 July 2025 respectively, the Plaintiff issued the Disclosure Summons and the Defendants issued the Stay Summons. By consent, both Summonses were adjourned to the present hearing.

C. APPLICABLE PRINCIPLES

18.  The applicable principles are well-established and not in dispute.

19.  In considering whether the court should exercise its discretion to grant relief pursuant to section 21M of the High Court Ordinance (Cap. 4) (“HCO”) in aid of foreign proceedings, a two-stage test is involved:-

(1) The first stage is to consider whether, if the plaintiff succeeds in the foreign court, the resultant judgment is one that the Hong Kong court will enforce. If it is so enforceable, the court has to form a view, on all the available materials, including any findings of the foreign court itself, whether the plaintiff has a good arguable case before the foreign court and whether there is a real risk that the defendant will dissipate his assets if a Mareva injunction is not granted.

(2) The second stage is to consider whether the fact that the court has no jurisdiction apart from this section in relation to the subject matter of the proceedings concerned makes it “unjust” or “inconvenient” for the court to grant the application.

(See Compania Sud Americana de Vapores SA v Hin-Pro International Logistics Ltd (2016) 19 HKCFAR 586 at §§53-54).

20.  The principles regarding the grant of a Mareva injunction are well-known and it is incumbent upon the plaintiff to establish the following:-

(1) The plaintiff has a good arguable case against the defendant.

(2) The defendant has assets within the jurisdiction.

(3) The balance of convenience is in favour of granting an injunction.

(4) There is a real risk of dissipation of assets so as to render any judgment which the plaintiff may obtain nugatory.

(See Hong Kong Civil Procedure 2026 at §29/1/65).

21.  Where a plaintiff seeks a Mareva injunction against a third party invoking the Chabra jurisdiction, the following requirements must be satisfied:-

(1) There is good reason to suppose either that:

(a) a defendant against whom the plaintiff asserts no cause of action holds, is using, or has exercised, or is exercising a power of disposition over, or is otherwise in possession of, assets of the defendant whom the plaintiff asserts to be liable on his substantive claim in arbitration; or alternatively

(b) the assets held in the name of the non-cause of action defendant would be amenable to execution of some process, ultimately enforceable by the courts, by which the assets would be available to satisfy an award against the cause of action defendant.

(2) There is a real risk of dissipation of the assets on the part of the non-cause of action defendant.

(3) It is just and convenient to grant the injunction against the non-cause of action defendant.

(See Co A v Co D [2019] HKCFI 367 at §71).

22.  The proper approach to assessing whether there is a real risk of dissipation of assets was set out by the Court of Appeal in Convoy Collateral Limited v Cho Kwai Chee [2020] 6 HKC 81 at §§35-54. In particular:-

(1) The ultimate question is whether there is a solid basis for concluding that there is a real risk of unjustified dissipation of assets by a defendant. That question is to be answered by examining the evidence holistically: §§37, 53.

(2) The plaintiff must show a real risk, judged objectively, that a future judgment would not be met because of an unjustified dissipation of assets. In this context, dissipation means putting the assets out of reach of a judgment whether by concealment or transfer. The risk of dissipation must be established by solid evidence; mere inference or generalised assertions are not sufficient: §35.

(3) The assessment is in respect of the risk of dissipation as opposed to the fact of actual dissipation. As such, the exercise necessarily involves an evaluative and predictive judgment. Thus, the evidential burden can be satisfied by drawing proper inferences from a holistic consideration of all the circumstantial materials that are indicative of risk, including matters which point against such risk: §40.

(4) That said, a solid basis to support an inference of risk of dissipation is to be contrasted with unsupported or bare statements of fear which would carry little weight. Unsupported statements and expressions of fear, carry very little, if any, weight. The Court needs to act on objective facts: §41.

(5) Where there is nothing more than propensity evidence it would not be right to infer from it a real risk of dissipation unless the conduct of the defendant is at or very close to the fraud or dishonesty end of the spectrum. Nevertheless, evidence of dishonest and fraudulent conducts or other serious wrongdoings which form the basis of the claims, and which reflect adversely on the integrity of the defendant could point powerfully towards an inference of such risk: §§52-53.

23.  It is trite that a party who applies for an ex parte injunction order is under a duty to give full and frank disclosure of all facts, evidence, issues or any other relevant information to its application. The applicant should bring to the court’s attention any points that could have been made by the respondent, even if not yet made, provided that: (a) it is one that the respondent would reasonably be expected to raise; and (b) it cannot be dismissed as without substance or importance: Hong Kong Civil Procedure 2026 at §29/1/51; Gee on Commercial Injunctions (7^th ed) at §§9-006 to 9-007.

24.  In dealing with non-disclosure arguments, the court takes a realistic view, particularly in complex cases. On the question of materiality, there are degrees of relevance and it is important to preserve a due sense of proportion. In other words, in applying the test of materiality, sensible limits have to be drawn. The ultimate touchstone is whether the presentation of the application is fair in all material respects: Haitong International v Wang Yafeng [2024] HKCFI 2331 at §8.2.

25.  It is inappropriate to seek to set aside a Mareva injunction for non-disclosure where proof of non-disclosure depends on proof of facts which are themselves in issue in the action, unless the facts are truly so plain that they can be readily and summarily established, otherwise the application to set aside the Mareva injunction is liable to become a form of preliminary trial in which the judge is asked to make findings (albeit provisionally) on issues which should be more properly reserved for the trial itself: Kazakhstan Kagazy plc v Arip [2014] 1 CLC 451 at §36.

D. MATERIAL NON-DISCLOSURE

26.  The Defendants’ case on material non-disclosure can be summarised as follows:-

(1) The Plaintiff failed to disclose the factual background concerning the establishment and ownership of the Group, which demonstrates that the capital and control of (inter alia) the Plaintiff ultimately rests with the 1^st Defendant. As alleged by the Defendants, a significant portion of funds (RMB90,000,000) that eventually went into the Plaintiff was first channelled from 首航高科能源技术股份有限公司 (“首航高科”), an external investor, through the 1^st Defendant’s companies, 氢联高科 and 新疆鑫航联. Further, Li failed to pay the consideration for his shares in the Beijing Partnership, which casts doubt on his beneficial ownership over the Group. It is also contended that Li failed to fully explain how he came to obtain control over the Beijing Partnership. It is the Defendants’ submission that “this is not the usual case with a straightforward structure of company ownership, nor a clear case of misappropriation of funds by an external party.”

(2) The allegations relied upon by the Plaintiff to demonstrate the 1^st Defendant’s alleged lack of commercial morality are untrue and incomplete. In particular:-

(a) The Plaintiff’s allegation that the 1^st Defendant assaulted and wounded Ji’s friend on 31 March 2025 is untrue. It was in fact Li and his associates who violently intimidated the 1^st Defendant. Moreover, Li and his associates committed further illegal acts against the 1^st Defendant.

(b) The Plaintiff alleges that the 1^st Defendant applied for a Vanuatu passport using false personal particulars, including a fictitious name, which is said to demonstrate that his absence from the PRC was a deliberate and well-planned act, and reflects his “suspicious and deceitful character”. The 1^st Defendant denies any involvement with the Vanuatu passport apparently issued in his name and contends that it is a mere smear campaign.

(c) The Plaintiff omitted to mention various wrongdoings committed by Li and/or his associates, including the attempted takeover of 氢立得 via an improperly convened shareholders’ meeting and the misappropriation of a sum of RMB3,298,000 from 北京若誠科技有限公司 to 氢立得.

(3) In the ex parte application, the Plaintiff did not disclose or deal with any of the Defendants’ potential/possible substantive defences for the Impugned Transfers at all. Where the claim is that the 1^st Defendant has misappropriated the sum of the Impugned Transfers, it is logical, if not intuitively inevitable, that the 1^st Defendant would assert some form of entitlement over the same. Indeed, the 1^st Defendant repeatedly made it plain that the assets from the companies ultimately belong to him, such that he could transfer the same into his account.

D1. The 1^st Defendant’s alleged control and/or beneficial ownership over the Group

27.  I do not think there is any sufficient basis to find that there has been material non-disclosure in respect of the 1^st Defendant’s alleged control and/or beneficial ownership over the Group.

28.  First, on the materials placed before me, there is no factual basis supporting the 1^st Defendant’s allegation that he is the actual or ultimate owner and/or controller of the Group (including the Plaintiff):-

(1) The 1^st Defendant has described in detail how he established the Group, including the Beijing Partnership and the Plaintiff. However, whilst the 1^st Defendant may have been the person who initially set up the Group companies (which is not disputed by the Plaintiff), there is no cogent evidence which shows that he retained ownership/control over them after their shareholdings were transferred or that he has any entitlement to their assets.

(2) The 1^st Defendant emphasises that the majority of funds injected into the Plaintiff (RMB90,000,000) did not originate from Li, but represented the investment of 首航高科. However, this only demonstrates that the 1^st Defendant played a role in introducing investors to the Group, but it does not support his assertion of beneficial ownership or control. In this connection, the 1^st Defendant complains that in Ji’s ex parte affirmation, the assertion that Li via the Beijing Partnership controls the Plaintiff incorrectly suggested that the Plaintiff’s assets either originated from or otherwise belongs to Li. I do not think this complaint is valid. Read in context, the relevant passages were clearly directed to the issue of control, as opposed to the source or ownership of funds.

(3) The 1^st Defendant claims that Li acted in breach of an investment agreement under which Li agreed to inject RMB50,000,000 into 氢立得 through the Plaintiff as consideration for his shares in the Plaintiff. However, as the Plaintiff submits, the articles of 氢立得 indicate that the latest date for the injection of funds was 31 December 2030. Although the 1^st Defendant asserts that Li was in breach of the investment agreement and that he had repeatedly demanded Li to inject the relevant funds, neither a copy of the investment agreement nor any evidence of such demands has been produced before me. In any event, even if Li were in breach of the investment agreement (which the Plaintiff disputes), this would not necessarily call into question his ownership of shares in the Beijing Partnership. It is undisputed that Li was, at all material times, the registered owner of 99.75% of the shares in the Beijing Partnership, and there is no suggestion that he held those shares on trust for the 1^st Defendant.

29.  Second, even if there were some factual basis to suggest that the 1^st Defendant remained the actual owner and/or controller of the Plaintiff (despite the Management Agreement and the transfer of 99.75% of the Beijing Partnership’s shareholding to Li), this would not per se allow the 1^st Defendant to claim any entitlement over the funds of the Plaintiff, including the sum of the Impugned Transfers. As submitted by the Plaintiff, once funds are injected into the Plaintiff, they become the property of the Plaintiff rather than their original source, subject to any claim that they are held on trust. No allegation of trust has been made by the Defendants. It is also trite that a shareholder of a company does not own its assets. Insofar as the Defendants contend that the position under PRC law is otherwise – for example, that an ultimate controller of a corporate group may lawfully transfer funds across his indirectly owned companies – it is incumbent upon them to adduce relevant PRC law evidence. They have not done so.

D2. Allegations relied upon by the Plaintiff to demonstrate real risk of dissipation of assets

30.  I am not satisfied that there was any material non-disclosure in relation to the allegations relied upon by the Plaintiff to demonstrate a real risk of dissipation of assets.

31.  The Defendants complain that the Plaintiff relied upon allegations against the 1^st Defendant (as summarised in paragraph 26(2)(a)-(b) above) which Ji and Li knew, or ought to have known, were untrue and incomplete. As discussed above, it is inappropriate to set aside a Mareva injunction for non-disclosure where proof of non-disclosure depends on proof of facts which are themselves in issue in the action, unless the facts are truly so plain that they can be readily and summarily established: see Kazakhstan Kagazy plc (supra) at §36. On the materials placed before me (including the photographs and police reports/testimony adduced by the Defendants in relation to the alleged assault on 31 March 2025), I do not think that the Defendants’ version of events can be established to the requisite standard.

32.  On the Defendants’ claim of alleged wrongdoings by Li and/or his associates (as summarised in paragraph 26(2)(c) above), the Plaintiff denies those allegations. There are plainly factual disputes in this regard which cannot be resolved on affidavit evidence. In any event, even if those allegations were established, the Defendants have not explained how they would be relevant to whether was any justification for the Impugned Transfers, or whether there is a real risk of dissipation of assets on the Defendants’ part.

E. RISK OF DISSIPATION

33.  I am satisfied that the Plaintiff has established a real risk of dissipation of assets on the part of the 1^st Defendant:-

(1) For the reasons discussed above, I am not satisfied that the 1^st Defendant has demonstrated any entitlement to the use of the Plaintiff’s funds. In my judgment, there is a solid evidential basis indicating that the Impugned Transfers constituted a misappropriation of the Plaintiff’s funds by the 1^st Defendant.

(2) The 1^st Defendant claims that the Impugned Transfers formed part of a “fund allocation exercise” (資金調配). However, no explanation has been provided as to the commercial rationale of such fund allocation, or why funds said to be for the use of the Group were apparently transferred to the 1^st Defendant’s personal bank account. Moreover, the 1^st Defendant has not accounted for the current whereabouts and/or application of the sum of the Impugned Transfers.

(3) As submitted by the Plaintiff, there appears to be evidence of actual dissipation, in that the account of天津伟智which received the sum of the Impugned Transfers is now virtually empty with only RMB6,807.25 remaining. No explanation has been provided for the transfers out of that account.

(4) The 1^st Defendant appears to be under criminal investigation in the PRC in respect of (inter alia) the Impugned Transfers. He has not returned to the PRC since April 2025. Although he denies having “absconded” (as submitted by the Plaintiff) and claims to have been on a business trip, no details or explanations have been provided as to its duration of his absence. Nor has the 1^st Defendant indicated when he intends to return to the PRC.

34.  For the avoidance of doubt, in assessing whether there is a real risk of dissipation, I have not attached weight to the factual matters contested by the 1^st Defendant and incapable of resolution on affidavit evidence, including the alleged assault on 31 March 2025 and the 1^st Defendant’s alleged counterfeit passport.

35.  I accept the Plaintiff’s submission that, since the 1^st Defendant is the sole shareholder and director of the 2^nd Defendant, his conduct should be considered in assessing the risk of dissipation on the 2^nd Defendant’s part in the circumstances of this case: see Co A (supra) at §83. My findings on the risk of dissipation in relation to the 1^st Defendant therefore apply equally to the 2^nd Defendant.

36.  For completeness, whilst the Defendants have not opposed the continuation of the Injunction Order on any further grounds, I am satisfied, for the reasons submitted by the Plaintiff, that this is an appropriate case for the grant of an injunction under section 21M of the HCO in aid of the PRC Proceedings, and for the grant of an injunction against the 2^nd Defendant pursuant to the Court’s Chabra jurisdiction.

F. DISCLOSURE SUMMONS AND STAY SUMMONS

37.  Pursuant to the Injunction Order, the Defendants are under a duty to give disclosure in writing of all his or its assets of individual value of HK$10,000 or more in Hong Kong within 14 days after service of the order. It is undisputed that the Defendants have not complied with their disclosure obligation.

38.  The Defendants accept that their disclosure obligation hinged upon whether the Injunction Order would be discharged. Given my view that the Injunction Order should be continued, I am satisfied that the Defendants should be directed to comply with their disclosure obligation in order to give effect to the Injunction Order.

G. DISPOSITION

39.  For the above reasons, I make the following orders:-

(1) The Injunction Order be continued in terms of paragraph 1 of the Continuation Summons.

(2) Orders in terms of paragraphs 1 and 2 of the Disclosure Summons, save that the time limit for compliance with paragraph 2 shall be 14 days instead of 7 days.

(3) The Stay Summons be dismissed.

40.  I also make an order nisi that the Defendants shall pay the Plaintiff’s costs of and occasioned by this action (including the costs of and occasioned by the present applications), to be taxed on a party and party basis, if not agreed. The costs order nisi shall become absolute unless an application to vary the same is made within the next 14 days.

H. POSTSCRIPT

41.  By letter dated 29 May 2026 to the Court, the Plaintiff’s solicitors sought directions for a new affirmation to be filed with a view to providing an update on the latest development in the PRC Proceedings. No Summons has yet been issued and the Court has not received the Defendants’ response to the Plaintiff’s present request. Hence, for the purpose of this Judgment, I have not taken into account any information regarding the update for the PRC Proceedings as contained in the Plaintiff’s solicitors’ letter dated 29 May 2026 or the documents attached thereto in this Judgment. If the Plaintiff intends to take out a formal application in this regard, I will deal with it as and when necessary.