HO PAK HUNG ALSO KNOWN AS HO WING ON v. CHENG LAI PING

DCCJ 4050/2025

[2026] HKDC 753

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4050 OF 2025

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DECISION

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A.  INTRODUCTION

1.  By summons dated 28 August 2025, the defendant applies to stay this action on the grounds under Order 12, rules 8(2A)(b) and 8(2A)(c) of the Rules of the District Court, Cap 336H. Unless otherwise specified, all references to Orders and rules are to these Rules.

2.  At the hearing, Mr Chung, counsel for the defendant, confirmed that the defendant only relies on the ground under Order 12, rule 8(2A)(b), namely, “the defendant is entitled to rely on an agreement to which the plaintiff is a party, excluding the jurisdiction of the Court”. He further accepted that the defendant’s application would fail if the clause in question (“the Clause”) is a non-exclusive jurisdiction clause (“NEJC”) as opposed to an exclusive jurisdiction clause (“EJC”).

3.  On that basis, this application raises two issues, namely:

(1)  Whether the Clause, on its proper construction, is an EJC.

(2)  If so, whether the Court should exercise its discretion to order a stay of this action.

B.  THE FACTS AND PROCEDURAL HISTORY

4.  The following facts are taken from the affirmations filed by the plaintiff and the defendant. Unless otherwise specified, they are largely undisputed.

5.  By an agreement entitled “港珠澳牌協議” (in simplified Chinese) dated 12 December 2017 (“the Agreement”), the defendant engaged the plaintiff to apply for a cross-border vehicle licence via the Hong Kong-Zhuhai-Macao Bridge at a consideration of RMB430,000.

6.  Clause 6, paragraph 3 is the Clause in question conferring jurisdiction on 深圳市罗湖区法院 (Shenzhen Luohu District Primary People’s Court) (“Luohu Court”):

「本合同在执行过程中，产生争议的，双方应该友好协商；如协商不成的，交给深圳市罗湖区法院通过诉讼解决。」

7.  On 13 December 2017, the defendant remitted RMB180,000 to the plaintiff pursuant to paragraph 1 of clause 5 of the Agreement.

8.  Thereafter, a dispute arose between the parties. The said licence has never been issued.

9.  The plaintiff commenced this action by a writ indorsed with a statement of claim dated 18 July 2025. He alleged that he had performed various tasks for the said application for cross-border vehicle licence pursuant to the Agreement and incurred various expenses in relation thereto. In breach of the Agreement, the defendant refused to pay the balance of RMB250,000. He claimed damages in the sum of RMB379,784.15.

10.  On 28 August 2025, the defendant applied for stay of this action.

11.  By《廣東省深圳前海合作區人民法院受理案件通知書》 (in simplified Chinese) dated 30 October 2025, 深圳前海合作区人民法院 (Shenzhen Qianhai Cooperation Zone People’s Court) (“Qianhai Court”) has been seised of the case involving the disputes between the defendant and the plaintiff arising out of the Agreement, namely (2025) 粵0391民初13445号 (“Mainland Action”).

C.  THE CONSTRUCTION ISSUE

C.1  The applicable principles in the construction of jurisdiction clauses

12.  The applicable principles which are particularly relevant to the question of whether a clause confers exclusive jurisdiction on Mainland courts can be distilled from the authorities as follows.

13.  In this regard, cases decided under the Mainland Judgments (Reciprocal Enforcement) Ordinance, Cap 597 (“Cap 597”) in respect of applications for registration of mainland judgments are instructive because the “choice of Mainland court agreement” requirement under s 5(2)(b), as defined in s 3(2) of Cap 597, is fulfilled “if the jurisdiction clause, properly construed in accordance with the governing law of the contract, confers exclusive jurisdiction on the courts in the Mainland or any of them”[1].

14.  In deciding whether a jurisdiction clause confers exclusive or non-exclusive jurisdiction on a Mainland court, the first consideration is the law applicable to govern the clause. In the absence of an express governing law clause in the applicable agreement, the applicable law is that system with which the transaction has the closest and most real connection[2].

15.  Examples of relevant factors in determining the closest and most real connection[3] can be summarised as follows:

(1)  The importance of the location of the subject matter of the contract varies according to the nature of the subject matter. If the contract’s subject matter is land, that will be a powerful factor for the governing laws to follow the location of the land. For movable property, its location at the time of contracting would be relevant. This factor would be less significant for intangible assets or tangible assets which represent merely one aspect of the transaction.

(2)  The place of intended performance is generally viewed as a very important factor in determining the system with which the contract has the closest and most real connection.

(3)  There is no presumption that a contract is most closely connected with the place where a performing party has his habitual residence at the time of conclusion of the contract.

(4)  The place where the contract is made or negotiated is only a relevant factor, and is far less significant than what it once was.

(5)  It is inappropriate to give much weight to the residence or domicile of the parties unless it is the same for most or all of the parties on different sides of the contractual relationship.

(6)  The adoption of the technical legal terminology of a particular legal system may lead the court to conclude that that is its governing law.

(7)  The language used in the contract may sometimes be a relevant but often be a relatively unimportant factor.

(8)  An express choice of a tribunal may be an important or even decisive factor, or a strong implication or weighty indication that the governing law is the location of that forum, subject to other indications pointing otherwise.

(9)  The references to a particular currency are indicative of the law of the country of that currency being the governing law, but there are limits to its relevance.

(10)  Related contracts may be intended to have the same system of governing law, but much depends on context.

16.  In the absence of expert evidence on Mainland laws showing how they differ from Hong Kong laws on the construction exercise, it is presumed that Mainland laws are the same as Hong Kong laws, and the court applies Hong Kong laws to rule on and approach the matter; it is not open for a party to argue that the clause has a different meaning under Mainland laws, particularly when its position in affirmation evidence has been that Hong Kong laws should apply[4].

17.  The construction of a written document, including a jurisdiction clause[5], is a question of law. The court cannot be bound by any concession made by any of the parties as to what its language means[6].

18.  The question is whether on its true construction the clause obliges the parties to resort to the relevant jurisdiction, irrespective of whether the word “exclusive”, “must”, “shall”, “應” or “須” in Chinese is used, having regard to the matrix background or surrounding circumstances [7]. The Court looks at the substance and not the form of words used[8].

19.  The court is entitled, and indeed duty bound, to use its legal training to scrutinize the primary foreign sources and is entitled to reject foreign expert evidence if the relevant expert has “never applied his mind to the real point of law”, or “if the matters stated by the expert did not support his conclusion according to any stated or implied process of reasoning”[9].

C.2  Three categories of jurisdiction clauses: permissive, imperative and bare verbs

20.  While textual analysis is not determinative in the construction of a jurisdiction clause, the case law can be conveniently divided into three broad categories based on their textual differences:

(1)  The clause employs a verb preceded by imperative words such as “應”, “應當” or “須” which is akin to the auxiliary verbs of “should” or “shall” or “must”.

(2)  The clause employs a verb preceded by permissive words such as “可” or “可以” which is akin to the auxiliary verbs of “may” or “can”.

(3)  The clause simply employs a bare verb which is not preceded by any words in the nature of an auxiliary verb, making it sound like a declaratory statement or command.

C.2.a  The first category: imperative words

21.  In the first category of cases, the courts have been inclined to find that the jurisdiction clauses are EJCs on the basis that imperative words were used.

22.  In 天津市裕豐隆資產管理有限公司 v Ho Kin Wa [2019] HKCFI 556, the clauses read “应提交甲方所在地的有管辖权的人民法院诉讼解决” (clause 7(1)(2)) and “甲乙双方应提交甲方所在地的管辖权的人民法院诉讼解决” (clause 4(1)) (§15). DHCJ Paul Lam SC held at §24 that the clauses were EJCs, having regard both to the evidence of the 1^st defendant’s expert that, under Mainland law, the word “exclusive” or its equivalent in Chinese need not be expressly used (§18), and to the fact that the word “应” was used in other clauses to express mandatory obligations (§23).

23.  In 苏州高新文旅集团有限公司 v 電競國際集團有限公司 [2025] HKCFI 1015; [2025] 3 HKC 703, another setting aside application under Cap 597, the jurisdiction clause (clause 13(3)) reads “應將該爭議提交至原告住所地人民法院進行裁決” (§21). DHCJ Alan Kwong accepted at §24 the plaintiff’s expert evidence (to which the defendant filed no evidence in response) and held that this clause was an EJC.

C.2.b  The second category: permissive words

24.  In the second category, the courts have reached divergent results by a process of reasoning based not only on a textual analysis but also on other contextual factors.

25.  In five cases, the courts have no difficulty in concluding that the clauses were EJCs. In Bank of China Ltd v Yang Fan [2016] 3 HKLRD 7, the defendant sought to discharge an ex parte Mareva injunction on the ground that there was no EJC in favour of any Mainland courts (§25). The relevant clauses (clauses 13 and 15) read “任何一方可以採取下列第3種方式加以解決：… 3. 依法向有管轄權的人民法院起訴。” (§28, emphasis in original). To J held at §§31-34 that these clauses were EJCs as follows:

“31. … In ordinary usage, “may” or “can” is permissive whereas “must” or “shall” is imperative. In accordance with such usage, the phrase “可以” will not generally be construed to be imperative. This is only the prima facie meaning. There are numerous examples where the word “may” is construed as imperative, and the word “must” or “shall” is construed as permissive even in statutes, not just in documents or contracts. All depends on the context in which the word is used. Ultimately, it is a question of what is the intention of the parties who drafted the document.

…

33. … The factual matrix is as follows. The parties are PRC parties. The Plaintiff is a bank residing and operating in the PRC. The borrowers, ie the parties primarily liable, are residing and carrying on business in the PRC. The Defendant is a PRC resident residing in Rizhao, Shandong. The two loan agreements and the two guarantees were all executed in the PRC. The parties’ contracted place of performance and the place of breach are in the PRC. The governing law of the loan agreements and guarantees is PRC law.

34. Like most contracts with PRC parties, the contracting parties would agree to resolve their disputes by mediation or negotiation and only upon failing that would they resort to litigation. Here, the parties specified the third of three means of dispute resolution as the manner in which their disputes are to be resolved. The first one is to submit to arbitration by an arbitration committee. The second one is to institute legal proceedings against the plaintiff in a PRC court. This option is only available to the Defendant and is inapplicable to the present case. The third one is to institute legal proceedings in a PRC court which has jurisdiction. Against the above factual matrix and the three means set out in the loan agreements, prima facie, it must be the parties’ intention that the third means is the only means of dispute resolution agreed between the parties if they cannot resolve their dispute by mediation. This intention could be tested by asking what if one party wishes to proceed by the third means but the other party wishes to proceed by the first or second means or an unspecified means such as litigation in a jurisdiction outside the PRC. The first and second options must have been impliedly excluded by reason of the parties consciously choosing the third option only out of the three specified options, whereas any other unspecified options would render the entire clause superfluous and meaningless. To litigate outside the PRC does not make sense in the light of the factual matrix.  […]”

26.  In 黃书建 v 代威 [2019] HKCFI 1386; sub nom Huang Shu Jian v Dai Wei [2020] 1 HKC 309, the respondent applied to set aside the registration of a Mainland judgment under Cap 597 on the ground that the relevant clause (clause 6), namely “各方均可向本合同簽訂地北京市朝陽區有管轄權的法院起訴”, was not an EJC (§4). Having considered the expert evidence filed by both parties on Mainland law (§§37-47), Lok J preferred the applicant’s expert evidence and held that clause 6 was an EJC (§48).

27.  Beijing Renji Real Estate Development Group Co Ltd v Zhu Min [2022] HKCFI 1027; [2022] 4 HKC 116 concerned another setting aside application under Cap 597. The issue was whether “可依法向本合同簽署地人民法院起訴” (clause 90) was an EJC (§6). G Lam JA, sitting as an additional judge of the Court of First Instance (“CFI”), held at §48 that it was an EJC, having regard to, inter alia, the plaintiff’s expert evidence that “the fact that all the parties were based in the Mainland, the agreements were all signed in the Mainland, the agreements were intended to be performed in the Mainland, all point to the conclusion that the parties had intended to use the court in clause 90 to resolve the disputes”.

28.  In China Everbright Bank Co Ltd v China Kingho Energy Group Limited [2024] HKCFI 3586; [2025] 2 HKC 863, the clauses read “則提交貸款行所在地法院以訴訟方式解決” (clause 59) (§30(c)(i)) and “任何一方可以依法向債權人所在地人民法院起訴” (clause 19) (§30(c)(ii)). K Yeung J held at §30(c)(iv)-(v) that section 5(2)(b) of Cap 597 was satisfied.

29.  In 華融華僑資產管理股份有限公司 v 李晓鹏 [2025] HKCFI 6402, the clause (clause 12.2) reads “則可將爭議提交甲方住所地有管轄權的法院通過訴訟方式解決” (§7). Au-Yeung J held at §36 that clause 12.2 was an EJC.

30.  In three other cases, the courts reached the opposite conclusion that the following clauses were NEJCs.

(1)  In 四川順利昌隆科技有限公司 v Sze Ming Yee [2021] HKCFI 2289, the clauses read “任何一方均可將爭議提交合同簽署地 … 有管轄權的人民法院通過訴訟方式解決” (clause 6) and “各方就本合同有爭議的，任何一方可向本合同簽訂地有管轄權的法院提訴” (clause 13) (§12). Linda Chan J held at §25 that these clauses were NEJCs.

(2)  In China Railway (Hong Kong) Holdings Ltd v Chung Kin Holdings Co Ltd [2023] HKCFI 132, the clause reads “[P] 有權向 [Jinyin] 所在地仲裁委員會申請仲裁或向 [Jinyin] 所在地人民法院起訴” (clause 6) (§8(d)). Master Alexander Tang held at §§40-41 that the clause was an NEJC.

(3)  In China City Construction (International) Co Ltd v China City Construction & Development Co (HK) Ltd [2025] HKCFI 710; [2025] 3 HKC 415, the clause reads “任一方均可向北京市西城區或香港有管轄權的法院提起訴訟” (§35.2). DHCJ Maria Yuen held at §63 that the clause was an NEJC.

C.2.c  The third category: bare verbs

31.  In the third category, the courts in three cases had no difficulty in finding that clauses bearing only bare verbs were indeed EJCs.

32.  In Wang Qian Wei v 郭文雨 [2018] HKCFI 2253; [2019] 1 HKC 413, the jurisdiction clause (clause 8) reads “協商不成各方均同意交由甲方所在地人民法院管轄審理” (§8, emphasis in original). DHCJ William Wong SC held at §30 that this clause was an EJC and agreed with counsel’s submissions at §§31-32 in support of this conclusion, namely that:

(1)  All parties to the agreement either resided or operated their businesses in Mainland.

(2)  The agreement set out the parties’ means of contact, all of which were Mainland addresses and phone numbers.

(3)  The agreement superseded two previous agreements relating to commercial transactions in Mainland.

(4)  All the agreements were made in simplified Chinese.

(5)  The parties did in fact submit to the jurisdiction of the relevant Mainland court to resolve their disputes.

33.  In Hong Ziyun v Chan Kwan Ming [2019] 4 HKLRD 405, the jurisdiction clause (clause 4) reads “四方同意有關借款協議的爭議協商不成的，提交本補充協議簽訂地法院管轄” (§10). Mimmie Chan J noted at §27 that the plaintiff did not dispute the defendants’ expert evidence that the clause was an EJC. The Court held at §29 that the clause obliged the plaintiff to litigate in the chosen jurisdiction as follows:

“Taking into consideration the factual matrix of the 2^nd Loan in renminbi, paid on the Mainland, for the acquisition of land on the Mainland (as stated in the 2^nd Loan agreement), I conclude that the parties could only have intended that the resolution of any disputes relating to the 2^nd Loan is to be resolved by the Mainland Court, and not any other court.”

34.  In Cao Shuhui v Dacheng Group Holdings (Hong Kong) Co Ltd [2024] HKCFI 284, an application for leave to commence statutory derivative action, DHCJ William Wong SC held at §45 that the jurisdiction clause (quoted at §44) that “由目標公司所在地人民法院管轄並依法裁權” (clause 8.2.1) was an EJC having regard to the 2^nd defendant’s expert evidence which was not challenged by the plaintiff’s expert.

35.  The court reached the contrary conclusion in Rich Village Ltd v Grand Pride Holdings Ltd [2012] 5 HKLRD 124. The clause (clause 13.2) reads “本协议未尽事宜，双方协商解决，协商不成则向合同签订地法院起诉” (§9). At first instance, Recorder A Chan SC (as he then was) held at §36 that it was a “critical factor” that an order by that Mainland court “cannot be enforced in Hong Kong” and that to construe it as an EJC would produce an unreasonable result.

36.  This decision was affirmed on appeal: Rich Village Ltd v Grand Pride Holdings Ltd CACV 224/2012 (unreported, 22 January 2013). Cheung CJHC (as the Chief Justice then was) held that the following matters were important:

(1)  The clause was part of a serious and important commercial agreement involving substantial sums of money, and other clauses in the agreement used words such as “應”, “須” or the like (shall, must, should etc) to clearly specify the obligation to make use of the designated methods to resolve the relevant disputes. But these words were not used in clause 13.2 (§17).

(2)  Hong Kong was the “most natural and convenient forum” for an action to enforce obligations under the agreement, having regard to its nature and subject matter, namely the transfer or buyback of certain shares of a Hong Kong company. Moreover, there was no dispute that a judgment by the Mainland court for the transfer or return of the shares could not be directly enforced in Hong Kong (§23).

37.  It is noted however that as a matter of Chinese legal language, the use of bare verbs (without any preceding auxiliary verbs and sometimes even omitting the subject) often connotes the imposition of mandatory obligations. This can be seen in the provisions of the Basic Law of the HKSAR, which is itself one of the 34 basic laws (基本法律) enacted by the National People’s Congress. For example:

(1)  Article 3 provides that the executive authorities “shall be composed” of Hong Kong permanent residents (“由香港永久性居民…組成”).

(2)  Article 4 provides that HKSAR “shall safeguard” the rights and freedoms of its residents (“依法保障”).

(3)  Article 5 provides that the previous capitalist system and way of life “shall remain unchanged” for 50 years (“保持”).

(4)  Article 6 provides that the HKSAR “shall protect” the right of private ownership of property (“依法保護”).

C.3  The parties’ cases on the governing law and construction issue

38.  The skeleton submissions for the defendant are silent on the construction issue, including what should be the governing law thereon. Paragraph 8 contains a simple statement as follows:

“As far as this Summons is concerned, the key and relevant clause is the exclusive jurisdiction clause … which provides as follows:

“本合同在执行过程中，如产生争议，双方应友好协商；协商不成的，提交深圳市罗湖区人民法院通过诉讼解决。”

39.  At the hearing, Mr Chung sought to make some impromptu submissions on the construction issue.

40.  In The Export-Import Bank of China v Taifeng Textile Group Company Ltd [2018] HKCFI 1840, an application to set aside an order for registration of a Mainland judgment under Cap 597 raised a construction point for the first time in its reply submissions, thus in breach of paragraphs 7 and 11 of Practice Direction 5.4. Lisa Wong J at §73 made a case management decision to refuse to entertain the issue of construction.

41.  Having regard to all the circumstances of the case, in particular the underlying objectives in Order 1A, I decided to hear Mr Chung’s submissions on why the Clause should be construed as an EJC, subject to the question of costs.

42.  His only argument was that the Clause used the word “提交” which showed, he submitted, the Luohu Court shall have the exclusive jurisdiction. This, however, does not assist his case. First, such argument is circular. Second, this is based on a misquote of the Clause, which reads “交給”. He was eventually driven to say that “交給” would also be sufficient to show that the Clause was an EJC, a submission which obviously suffers from the same circularity.

43.  Mr Tsui, the Solicitors for the plaintiff, in his skeleton argument, submitted that the Clause is not an EJC. His main argument was that the Clause lacks terms such as “exclusive” and that it does not expressly prohibit either party from commencing legal proceedings in any other jurisdictions. This argument cannot assist his case. As the above authorities show, the absence of these words is not determinative of the construction issue.

C.4  The evidence on the contextual factors

44.  In her supporting affirmation filed on 3 September 2025, the defendant merely referred to the Clause without adducing any expert evidence of Mainland law in support of her contention that the Clause is an EJC or that the courts in Hong Kong have no jurisdiction over the disputes under the Agreement. She said she was seeking legal advice in Mainland with a view to commence proceedings there to resolve this dispute.

45.  The plaintiff filed an affirmation in opposition on 21 October 2025 which contained no exhibits. He relies on the following matters:

(1)  The Agreement was signed in Hong Kong. Both parties resided in Hong Kong.

(2)  The meetings, conversations and telephone conversations happened in Hong Kong including the last meeting on 19 December 2024. Both parties never had meetings or signed documents in Mainland.

(3)  The defendant’s remittance of RMB180,000 was made through “香港工商銀行”.

(4)  The cross-border vehicle licence would be used for the defendant’s car registered in Hong Kong. The licence fee would be paid in Hong Kong.

46.  The plaintiff said he consulted some Mainland lawyers, and they were of the view that this dispute under the Agreement did not have “actual connection” (“实际联系”) with Luohu so that the Luohu Court has no jurisdiction to try this case. There was, however, no mention of any statutory provisions or written legal opinion on Mainland law.

47.  The defendant filed an affirmation in reply on 11 November 2025. She disagreed with the matters raised by the plaintiff (set out above) and provided documentary evidence in rebuttal as follows:

(1)  The defendant lives in Mainland from time to time. The plaintiff did not exclusively stay in Hong Kong as disclosed in a letter to the defendant’s solicitors dated 12 September 2025. But she did not dispute that the Agreement was signed in Hong Kong.

(2)  The conversations were largely conducted through WeChat so they could not be said to have taken place in Hong Kong. Not all meetings were held in Hong Kong. For example, WeChat history shows that they arranged a meeting in Zhuhai for the purpose of incorporating a company there and signing related documents on 8 February 2018.

(3)  The remittance slip of RMB180,000 shows that it was made through the parties’ accounts in “中国工商银行” (Industrial and Commercial Bank of China) in Mainland, but not Industrial and Commercial Bank of China (Asia) Limited in Hong Kong.

(4)  The cross-border vehicle licence would be used on the defendant’s car registered in Hong Kong but she would drive to Hong Kong, Macau and Zhuhai.

48.  In response to the plaintiff’s reliance of some Mainland lawyers’ view that the Luohu Court has no jurisdiction to try this case for want of “actual connection”, the defendant exhibited a written legal opinion by a Mainland lawyer (“國內律師的書面意見”). The 4-page legal opinion was apparently compiled by one “法律顾问：马伟强” without any information relevant to his expertise, such as qualifications, membership or even office address. Mr Tsui pointed out in his submissions that an online search on the website of Shenzhen Lawyers Association showed that there was no lawyer called “马伟强” in Shenzhen.

49.  By letter dated 9 December 2025, the plaintiff’s solicitors informed the defendant’s solicitors that they “would like to add” a 6-page legal opinion on Mainland law dated 16 October 2025 into the hearing bundle. Such request was refused by the defendant’s letter dated 15 December 2025.

50.  At the hearing, Mr Tsui accepted (correctly in my view) that the purported legal opinion on Mainland law should be expunged from the hearing bundle. Order 38, rule 36(1) states the general rule that “no expert evidence may be adduced at the …hearing of any cause or matter” without leave of the Court. Order 38, rule 36(2) provides for an exception in respect of “evidence which is permitted to be given by affidavit”: see Re A Civil Matter Pending in the United States District Court (Letter of Request) (No 2) [2020] HKCA 766; [2020] 5 HKLRD 30 §68. As acknowledged by Mr Tsui, that Mainland legal opinion did not form part of any affirmation evidence filed in this matter. There is no basis for adducing the same.

C.5  Leave to file further evidence and submission on one limited issue

51.  At the end of his submissions, Mr Tsui disclosed for the first time that a hearing of the Mainland Action took place on 21 January 2026 (ie 2 days before this hearing). It was attended by both the plaintiff and the defendant, at which the Qianhai Court ordered a “stay” of that action pending the resolution of this action in Hong Kong. Mr Chung disputed this, saying (on instructions) that the Qianhai Court merely ordered an adjournment pending the filing of evidence by both parties.

52.  In light of this development, and solely for the purpose of clarifying the issue of whether the Mainland Action had been “stayed” or “adjourned”, the Court granted leave to the parties upon their consent to file (1) further affirmation evidence to explain that limited issue with reference to the relevant transcript of the Mainland Action; and (2) further written submissions (if so advised) on this issue. When giving these directions, it was emphasised that these further materials could only deal with this limited issue. On this basis, the parties agreed that no further hearing would be necessary.

53.  Thereafter, the parties filed and lodged:-

(1)  The plaintiff’s 2^nd Affirmation on 27 February 2026;

(2)  The defendant’s 3^rd Affirmation on 2 March 2026;

(3)  The plaintiff’s further skeleton submissions on 5 March 2026; and

(4)  The defendant’s further skeleton submissions on 6 March 2026.

54.  The further materials filed or lodged by the plaintiff comprised 2 parts. The first part (which occupied almost the entirety of the further evidence and submissions) concerns the purported attempt to explain certain alleged differences between the Mainland Action and this action, or a rehash of his earlier submissions.

55.  As confirmed in paragraph 4(1) of the plaintiff’s further submissions, these paragraphs respond to the original grounds for stay sought by the defendant (本人陳述兩案本質不同，是為了回應被告最初的申請理由). There is no explanation as to why these factual evidence and submissions were not advanced earlier. No leave has been sought for their introduction, which the defendant unsurprisingly objected to. In the circumstances, I refuse to entertain these fresh factual matters and submissions as a matter of case management.

56.  The second part of the plaintiff’s further materials deals with the limited issue on which leave was granted. The further evidence consists of a bare statement suggesting that the Mainland Action is not stayed:-

「前海案件的審理進度是，在第一次開庭之後，雙方仍在補充提交證據。法庭並未確定是否會有下次聆訊，也尚未確定何時會進行判決。」

57.  This constitutes a clear concession that the Mainland Action is not stayed, and an abandonment of the assertion to the contrary at the end of the hearing on 23 January 2026.

58.  Accordingly, while not strictly necessary, the defendant could have simply adduced the transcript of proceedings of the hearing of the Mainland Action on 21 January 2026 to complete the picture. While this has been done, the defendant purported to make further submissions beyond the scope of the limited issue and introducing for the first time a fallback position as follows:

“If the Court considers the jurisdiction clause is a [NEJC], it will approach the matter on the basis of forum non conveniens … [citing 2 additional authorities]”

59.  I refuse to entertain these further submissions. They are raised in breach of the aforesaid directions and the defendant’s concession at the hearing. No leave to do so has been sought.

C.6  Findings on the contextual factors and analysis on the construction issue

60.  Adopting the approach in Re Joy Rich Development Ltd [2024] HKCA 122; [2024] 3 HKC 257, I accept the plaintiff’s affirmation evidence, save to the extent that it is plainly contradicted by contemporaneous documents adduced by the defendant. I make the following findings on the contextual factors which are relevant to the resolution of this application.

(1)  The Agreement in simplified Chinese was signed in Hong Kong. The defendant resided in both Hong Kong and Mainland while the plaintiff did not exclusively stay in Hong Kong. The parties communicated via WeChat and not all meetings were held in Hong Kong.

(2)  The Agreement only referred to RMB. The defendant’s remittance of RMB180,000 was made through the parties’ bank accounts in “中国工商银行” (Industrial and Commercial Bank of China) in Mainland, as specified in paragraph 4 of clause 6 of the Agreement.

(3)  The cross-border vehicle licence would be used on the defendant’s car registered in Hong Kong, but she would drive to Hong Kong, Macau and Zhuhai.

(4)  The Clause (clause 6, paragraph 3) specified the Luohu Court as the court to adjudicate any disputes arising therefrom.

(5)  Importantly, clause 4 of the Agreement provides for a list of contractual obligations on the part of the plaintiff which were required to be performed in Mainland. For example, under paragraph 7, the plaintiff shall apply for 《粵港澳機動車輛往來及駕駛員駕車批准通知書 》issued by the Guangdong Provincial Public Security Department (Approval Notice). Clause 8 also imposed obligations on both parties, some of which required performance in Mainland.

61.  In light of the above factors, I find that Mainland law is the governing law because it has the closest and most real connection with the transaction under the Agreement. A critical factor is that any dispute as to whether the plaintiff was in breach of the contractual obligations under clause 4 of the Agreement would likely require adjudication on whether he complied with the proper procedures in making the prescribed applications in Mainland, and it is inconceivable that Hong Kong law would apply for that purpose.

62.  Since both parties have not filed any expert evidence on Mainland law relating to the construction issue, it is presumed that Mainland laws are the same as Hong Kong laws, and the court applies Hong Kong laws to rule on the matter.

63.  In determining whether the Clause is an EJC, I consider the following matters to be important.

64.  First, a textual analysis of other provisions is inconclusive. Although some verbs imposing obligations are preceded by auxiliary words like “應”, “需” and “則”, the most important obligations under paragraph 7 of clause 4 appear as bare verbs: “乙方協助甲方完成申請車牌，辦理提交相關資料的手續，申請省公安廳簽發的《粵港澳機動車輛往來及駕駛員駕車批准通知書》”.

65.  Second, the nature and subject matter of the plaintiff’s obligations under clause 4 of the Agreement suggests that Mainland is the most natural and convenient forum to adjudicate any disputes arising therefrom.

66.  Third, on the basis of the limited evidence before me, I am not persuaded that the Luohu Court lacks “jurisdiction” to adjudicate this dispute.

67.  In his submissions, Mr Tsui informed the Court that those disputes involving Hong Kong have been handled centrally by the Qianhai Court. I have reservations as to the propriety of conveying factual matters to the Court through submissions. Even if this were true (a matter which the Court has received no expert evidence), this merely means, and he accepted, that the claims issued in the Luohu Court would be “transferred” (in a colloquial sense) to the Qianhai Court for further disposal. There is no basis, evidential or otherwise, for the view that the Luohu Court lacks jurisdiction to deal with the disputes between the parties.

68.  In this respect, I place little weight on the Mainland legal opinion adduced by the defendant. Quite apart from the deficiencies in relation to his expertise as stated above, there is a glaring omission in the opinion. It stated that the requirement for “actual connection” (“实际联系”) has been abolished by section 277 of The Civil Procedure Law of the People's Republic of China (《中华人民共和国民事诉讼法》) insofar as disputes involving Hong Kong are concerned. This legislative change, however, came into effect on 1 January 2024: see paragraph 9 of《全国人民代表大会常务委员会关于修改〈中华人民共和国民事诉讼法〉的决定》dated 1 September 2023. There is no analysis of how this legislative change in 2024 would affect the enforcement of the Agreement signed more than six years earlier in 2017.

69.  Fourth, Mr Tsui argued that, even if the plaintiff obtained judgment in Mainland, it could not be enforced under the Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance, Cap 645 (“Cap 645”).

70.  The plaintiff has not adduced any evidence as to why a prospective judgment to be given by the Qianhai Court will not be amenable to the registration procedure under Cap 645. On the face of it, it is at least arguable that such judgment would be registrable under Cap 645: (1) it could be an “effective” Mainland Judgment under section 8(1)(b)(iii) since the Qianhai Court appears to be a “Primary People’s Court”; and (2) the plaintiff adduces nothing to show that such judgment could be an “excluded judgment” under section 5.

71.  In 華融華僑資產管理股份有限公司 v 李晓鹏 [2025] HKCFI 6402, Au-Yeung J, without making a definitive decision, conducted a comprehensive analysis at §§44-70 as to why section 22(2) of Cap 597 bars common law enforcement of Mainland judgments which satisfies the statutory requirements under Cap 597. Referring to the similar provision in section 31 of Cap 645, the Court made an obiter remark that the “policy intent of using a statutory code for registration of registrable Mainland Judgments with a 2 year limitation period and barring the common law route is clear and consistent”.

72.  Therefore, even if the prospective Mainland judgment were to fall outside Cap 645, it appears that, as indicated at the hearing, it is at least arguable that it could be enforced in Hong Kong under the common law: see Sunsco International Holdings Ltd v Lin Chunrong [2025] HKCFI 5238 §13.5, DHCJ Jonathan Wong; followed in Beijing Renji Real Estate Development Group Co Ltd v Zhu Min [2026] HKCFI 197; [2026] 2 HKC 461 §43, DHCJ MK Liu.

73.  I therefore find that the Clause is an EJC.

D.  THE DISCRETION ISSUE

74.  In Re Lam Kwok Hung Guy, ex p Tor Asia Credit Master Fund LP (2023) 26 HKCFAR 119, the appellant creditor presented a bankruptcy petition in the Court of First Instance (“CFI”) against the respondent debtor. The respondent argued that the petition should be stayed because there was an EJC in the agreement in favour of a New York court. At first instance, the judge made a bankruptcy order against the respondent. The Court of Appeal ([2022] 4 HKLRD 793) set aside the order of the CFI and dismissed the petition on the basis of the EJC. The Court of Final Appeal unanimously dismissed the appellant’s appeal and endorsed at §107 the approach adopted by the majority of the Court of Appeal (constituted by Barma and G Lam JJA).

75.  Having noted at §83 the general powers conferred on the CFI to stay any proceedings “where it thinks fit to do so” under section 16(3) of the High Court Ordinance, Cap 4 (which is equivalent to section 48(5) of the District Court Ordinance, Cap 336), French NPJ (with whom the other members of the Court agreed) held at §§87-93 as follows:

“87. The discretion of a court to decline to exercise its jurisdiction in favour of another forum may be exercised in classes of cases that attract a range of considerations:

…

(2) An ordinary writ action where the dispute is contractual and covered by an EJC clause in the contract.

…

92. In the case of an EJC invoked in recovery proceedings, consideration of the question of whether the court should decline jurisdiction in favour of the agreed forum is not burdened by statutory constraint. An application to the court to stay or dismiss proceedings on the basis of an EJC may also invoke other grounds, for example Spiliada grounds, in support of a determination that the court is not the appropriate forum. The fact that a plaintiff has agreed contractually to dispute resolution in another forum will be highly relevant to whether the court should nevertheless proceed to entertain the claim. In El Amria, in the Court of Appeal, Lord Justice Brandon characterised as a correct statement by the Judge appealed against:

“…that the court will generally enforce an exclusive jurisdiction agreement, and that the plaintiffs had to show strong reasons why it should not do so.”

93. The strong reasons requirement is not met by reasons which suffice only to establish that the forum of the plaintiff’s choice is the forum conveniens. …

“The court will exercise its discretion to grant a stay unless the claimant shows strong reasons, certainly requiring more than that it show England to be the forum conveniens, why the English proceedings should not be stayed.”

A fortiori, if a plaintiff could not show that the English court was the appropriate forum a stay would be ordered.”

76.  Mr Tsui, for the plaintiff, sought to discharge the burden of showing “strong cause” by relying on the matters summarised in Section C.4 above. In addition, he prayed in aid the fact that the defendant only commenced the Mainland Action in the Qianhai Court on 23 October 2025, which was more than three months after the plaintiff commenced this action on 18 July 2025. This shows that the defendant used the Clause as “a defensive tool”.

77.  On the discretion issue, the defendant’s only argument was that the plaintiff failed to adduce any evidence to establish “strong cause”, and the factors relied upon by the plaintiff were only “factors to be considered by the Court if a stay application is made based on forum non conveniens”.

78.  In my view, the fact that the defendant only commenced proceedings in Mainland after the plaintiff commenced this action cannot constitute a “strong cause” for not enforcing the EJC.

79.  Having regard to the evidence and the submissions, in particular my findings under the construction issue in Section C.6 above, I find that the plaintiff fails to discharge the burden of showing strong reasons why the Court should not enforce the Clause as an EJC.

E.  DISPOSITION

80.  For the foregoing reasons, I exercise my discretion to grant a stay of this action under Order 12, rule 8(2A)(b).

81.  On costs, Mr Chung initially sought costs to be taxed on the indemnity basis citing Hong Kong Civil Procedure 2026 at §11/1/165 and Deltatre SPA v Hong Kong Sports Industrial Development Ltd [2018] HKCFI 1942; [2018] 4 HKLRD 478 at §125. It was said to be based on the general rule or presumption recognised in the case cited, but not on any special features in this case.

82.  His attention was then drawn to the passage cited, which states clearly that “it has now been determined that there is no such general rule or presumption, Re Lam Kwok Hung Guy, ex p Tor Asia Credit Master Fund LP (No 2) [2023] 5 HKLRD 463, [2023] HKCA 1099”. In that case, G Lam JA (with whom Barma and Chow JJA agreed), having considered the authorities including Deltatre [2018] 4 HKLRD 478, rejected at §21 the “general rule or presumption […] for ordering indemnity costs against a litigant who has brought proceedings in Hong Kong in breach of a jurisdiction agreement.” In light of the above, Mr Chung sensibly did not pursue the said costs order.

83.  Having regard to all the circumstances including the manner in which the parties have presented their submissions, I decide to exercise my power under Order 42, rule 5B(3) to make an order nisi that there be no order as to costs.