TSOI CHUNG TAT PRINCE v. WEI ZHONGXIA

HCA 1843/2021

[2026] HKCFI 716

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1843 OF 2021

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D E C I S I O N

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I.  INTRODUCTION

1.  On 31 July 2025, upon the Defendant’s Summons filed on 1 April 2025 (the “Defendant’s Summons”) relying on the ground of abuse of process, Master KW Wong made an order (the “Master’s Order”) that the Plaintiff’s action be struck out. This is the Plaintiff’s appeal against the Master’s Order. By nature, the appeal hearing is a de novo hearing of the Defendant’s Summons.

II.  THE PLAINTIFF’S CLAIM IN THE PRESENT PROCEEDINGS

2.  In order to understand the Plaintiff’s claim and the Defendant’s grounds for striking out, it is necessary to set out the relevant paragraphs of the Statement of Claim filed on 8 December 2021 (the “Statement of Claim”):-

“1. In or around April 2017, the Defendant intended to enter into a tripartite cooperation agreement named “Cooperation Agreement on Tax Payment for Ten Billion US Dollars in HSBC Hong Kong”, using The Hongkong and Shanghai Banking Corporation Limited (the “HSBC”) as an operating platform (the “HSBC Cooperation”).

2. In or around late March 2017, in order to meet the cash requirement needed to execute the HSBC Cooperation, the Defendant met the Plaintiff in Hong Kong and requested a loan in the sum of RMB15,000,000.00 (the “Loan”).

3. The Plaintiff and the Defendant documented the Loan by entering into written agreements dated 27 March 2017 and 30 March 2017 (collectively known as the “Loan Agreement”).

Particulars of the Loan Agreement

(a) The amount of RMB15,000,000 was loaned to the Defendant for covering the cash requirement needed to execute the HSBC Cooperation in or around early April 2017;

(b) The Loan was repayable immediately if the HSBC Cooperation did not proceed or if there was a failure to execute the HSBC Cooperation within a reasonable time;

(c) The Defendant’s [PRC] properties were pledged to the Plaintiff to guarantee the repayment of the Loan from the Defendant… (collectively known as the “Properties”).

4. On 5 April 2017, the Defendant failed to attend the headquarters of the HSBC… to execute the HSBC Cooperation.

5. On 6 April 2017, the Plaintiff instructed his former solicitors, Messrs. S.W.Tai & Co. (“S.W.Tai”) to issue a letter to the Defendant requesting her to provide information and the required documents necessary to perform the HSBC Cooperation.

6. In breach of the Loan Agreement, the Defendant failed to, or refused to provide the necessary information and/or documents to execute the HSBC Cooperation.

7…

8. On 22 May 2017, the Plaintiff met with the Defendant in the PRC with the related realty title certificates of the Properties (the “Realty Title Certificates”) for the Defendant’s repayment of the Outstanding Sum. However, the Defendant failed to repay the Outstanding Sum and took back the Realty Title Certificates illegally.

9…

10. Up to the date hereof, under the Agreement, the Outstanding Sum, RMB15,000,000.00 is still outstanding and due to the Plaintiff.

11. The Plaintiff claims against the Defendant for:-

(a) The Outstanding Sum of RMB15,000,000.00 as pleaded in paragraph 10 above;

(b) The Properties as pleaded in paragraphs 3(c) and 8 above;

(c) Interest…

(d) Costs of this action; and

(e) Further and/or other relief…”

3.  In answering the Defendant’s request for further and better particulars in respect of the tripartite cooperation agreement mentioned in §1 of the Statement of Claim, the Plaintiff avers that:-

“As it was the Defendant who produced the intended tripartite cooperation agreement, such agreement did not specify the actual name of parties and the Plaintiff does not know.”

4.  In other words, the Plaintiff’s cause of action according to the Statement of Claim is breach of contract. The alleged breach, according to §6 of the Statement of Claim, was the Defendant’s failure to provide the necessary information and/or documents to execute the HSBC Cooperation, and therefore, according to the term pleaded in §3(b) of the Statement of Claim, the Loan (loaned to the Plaintiff in the sum of RMB15,000,000 according to §3(a) of the Statement of Claim) became immediately repayable.

5.  The Defendant is out of jurisdiction. In the supporting affirmation for the Plaintiff’s ex parte application for leave for service out, namely, the Affirmation of Lam Chee-Yau Timothy filed on 30 June 2022 (the “Affirmation of Lam”), the Plaintiff provides more details in relation to the Loan which are not pleaded in the Statement of Claim at all. The said Affirmation deposed that:-

“8. As part of the negotiation, the Plaintiff was willing to make the Loan to the Defendant on the condition that:-

(a) the Defendant would execute the HSBC Cooperation Agreement;

(b) the Loan would be repayable to the Plaintiff immediately in the event that the Defendant failed to execute the HSBC Cooperation Agreement;

(c) the Defendant agreeing to pledge [the Properties] as security for the repayment of the Loan in the event that the Defendant failed to execute the HSBC Cooperation Agreement;

(d) the Defendant shall pay a deposit in the sum of RMB5,000,000.00 to the Plaintiff as security for the repayment of the Loan in the event that the Defendant failed to execute the HSBC Cooperation Agreement.

The Defendant agreed to the above (“the Oral Agreement”).

9. Pursuant to the Oral Agreement, the Defendant paid the said sum of RMB5,000,000.00 and pledged [the Properties]. The parties further documented the Oral Agreement and/or the Loan by entering into [珠海市房地產借款抵押合同 dated 27^th March 2017 (the “Real Estate Mortgage Loan Agreement”) and 合作協議 30^th March 2017 (“the Cooperation Agreement”)]…

10. In view of the above, the Plaintiff paid a sum of RMB20,000,000.00 to the operating platform pursuant to the HSBC Cooperation Agreement on 3^rd April 2017.

11… the Defendant in breach of the Oral Agreement, failed to attend the said HSBC headquarters and failed to sign the HSBC Cooperation Agreement on 5^th April 2017 as agreed…

12. As a result of the Defendant’s failure to execute the HSBC Cooperation Agreement, the Plaintiff forfeit[ed] the Defendant’s said deposit in the sum of RMB5,000,000.00 under the Oral Agreement and/or the Cooperation Agreement. Hence, the outstanding amount of the Loan due by the Defendant to the Plaintiff is RMB15,000,000.00… (“the Outstanding Sum”)…

6.  The cooperation agreement mentioned in §9 of the Affirmation of Lam (“P’s Cooperation Agreement”) provided that:-

“今收到 [the Defendant] 交来第一笔合作人民币柒拾万元整（¥70万元），第二笔合作款人民币肆伯叁拾万元整(¥430万元），用于合作香港汇丰银行美元现金有偿交易合作之事宜。如合作成功，七天之内原款退回 [the Defendant] … 如果没有合作的操作性，或合作途中出现误差与错误，应当事人双方互相追责，交由当地法院处理。（备注：如双方合作不成，[the Plaintiff] 有权合理没收订金及追回借出款项及利息等损失；如双方合作成功，则可以选择退还人民币伍伯万元整(¥500万元），或海立方泥码柒佰伍拾万元整(HK$750 万元）于 [the Defendant]” (emphasis added).

7.  The deposit of RMB5,000,000 is not pleaded in the Statement of Claim. Nor is it pleaded that the loan amount was RMB20,000,000 and the Outstanding Sum of RMB15,000,000 was worked out by deduction of the deposit of RMB5,000,000 from the loan of RMB20,000,000.

III.  THE PLAINTIFF’S CLAIM IN HCA 1436/2017

8.  In HCA 1436/2017, commenced by the Plaintiff against the Defendant by Writ of Summons filed on 19 June 2017 though never served on the Defendant, the Plaintiff makes claim in relation to the same RMB15,000,000. The Statement of Claim was prepared in Chinese, and the claim was framed as follows:-

(1)  Pursuant to a cooperation agreement dated 30 March 2017 and a subsequent oral agreement, the parties agreed to procure a cooperation of a US transaction through HSBC. (§1)

(2)  Pursuant to the cooperation agreement and the oral agreement, the Defendant agreed to provide the Plaintiff with a 保證金 (security deposit) in the total sum of RMB20,000,000. The first tranche, in the sum of RMB5,000,000, shall be paid upon the execution of the cooperation agreement, and the remaining RMB15,000,000 shall be paid within a specified time (規定時間內向原告人全數支付). If a party breaches the cooperation agreement, the innocent party may terminate the cooperation agreement. (§1)

(3)  In breach of the cooperation agreement and the oral agreement, the Defendant failed within the specified time to provide the Plaintiff with complete set of the relevant information, personnel and institution for procuring the said US transaction (“未能於規定限期內向原告人提交完整的相關資料，人事，機構以促成該事宜”). (§2-3)

(4)  As a result, the cooperation agreement and the oral agreement were terminated, the Plaintiff suffered loss, and forfeited the RMB5,000,000. (§4)

(5)  Further, the Defendant should, in accordance with the cooperation agreement and the oral agreement, immediately compensate the Plaintiff for the remaining security deposit in the sum of RMB15,000,000. (§4)

9.  The cooperation agreement mentioned there is P’s Cooperation Agreement.

10.  It remains for me to say that the Writ of Summons in HCA 1436/2017 have not been served and had expired before the present action was commenced in 2021.

IV.  THE DEFENDANT’S CASE

11.  The Defendant was served with the Writ of Summons and Statement of Claim in the present proceedings in December 2024, while the court documents in HCA 1436/2017 have never been served on the Defendant. No defence has been filed yet. In the Defendant’s affirmation in support of his striking out application before me, the Defendant deposes that:-

(1)  He did not request and did not borrow money from the Plaintiff under two written agreements dated 27 and 30 March 2017 in relation to an alleged tripartite cooperation agreement. (§6)

(2)  He never received monies from the Plaintiff under two written agreements dated 27 and 30 March 2017 and/or the alleged tripartite cooperation agreement. (§6)

(3)  The matter is the other way round – the Plaintiff should pay him the RMB5,000,000 allegedly forfeited by the Plaintiff according to the Plaintiff’s case. The Defendant transferred money totaling RMB5,000,000 to the Plaintiff in March 2017 under a “合作協議” dated 30 March 2017 (“D’s Cooperation Agreement”), and the Plaintiff promised to repay him within 7 days after the signing of the tripartite cooperation agreement or after the deal fell through. (§7)

(4)  D’s Cooperation Agreement, signed by both the Plaintiff and the Defendant, provided that:-

“今收到 [the Defendant] 交来第一笔合作款人民币杂拾万元整 (¥70万元），第二笔合作款人民币肆伯叁拾万元整 (¥430万元），用于合作香港汇丰银行美元现金有偿交易合作之事宜。如合作成功，七天之内原款退回[the Defendant] … 如果没有合作的橾作性，七天之内也原款退回。” (emphasis added)

V.  PRC PROCEEDINGS AND PRC JUDGMENTS

12.  For his claim of the RMB5,000,000, the Defendant commenced an action in 广东省深圳前海合作区人民法院 (the “Qianhai Court”), and after Qianhai Court’s hearing, obtained judgment dated 16 October 2019 (the “Qianhai Court Judgment”) ordering the Plaintiff to return the RMB5,000,000 to the Defendant.

13.  On pages 1 and 2 of the Qianhai Court Judgment, the Defendant’s claim was summarised essentially as in §8 above. On pages 2 and 3 of the Qianhai Court Judgment, the Plaintiff’s defence was set out in the following terms:-

“原、被告系合作关系，双方协商进行香港汇丰银行100 亿美元现金有偿交易合作项目，并非民间借贷。根据双万原本答署的《合作协议》[P’s Cooperation Agreement]，若合作不成，[the Plaintiff] 有权没收定金，并有权追回借出款项及利息等损失。原告经被告多次委托律师发函催告，拒不递交相应材料，导致合作不成。依照约定，[the Plaintiff] 有权没收定金。另外，没收的定金除本案的500 万元外，还有 [the Defendant] 向 [the Plaintiff] 借款、由 [the Plaintiff] 垫付的1500 万元，[the Plaintiff] 已在香港高等法院立案起诉，案件编号为HCA1436/2017, 但 [the Defendant] 拒绝到庭应诉。本案中 [the Defendant] 提交的《合作协议》，系 [the Plaintiff] 在被 [the Defendant] 非法拘禁的情况下迫不得巳签署，并非 [the Plaintiff] 真实意思表示，不应作为认定双方法律关系的依据。[The Defendant] 胁迫 [the Plaintiff] 签署修改后的协议有罗湖法院判决书以及独立见证人可予佐证。因此，因 [the Defendant] 过失导致双方合作不成，[the Plaintiff] 有权依照原合约没收原告的定金，且 [the Defendant] 需负担其借出款项的一切损失，请求人民法院依法驳回 [the Defendant] 的诉讼请求。”

14.  The issue before the Qianhai Court was therefore the nature of the RMB5,000,000. From the respective cases put forward by the parties, the nature of the RMB5,000,000 would depend on which of P’s Cooperation Agreement and D’s Cooperation Agreement reflected the true intention of the parties.

(1)  If the RMB5,000,000 was a forfeited deposit under P’s Cooperation Agreement, as alleged by the Plaintiff, then this RMB5,000,000 would not be repayable to the Defendant under D’s Cooperation Agreement as alleged by the Defendant.

(2)  The converse would also be true: if this RMB5,000,000 should be repayable within 7 days upon the Plaintiff’s transfer to the Defendant under D’s Cooperation Agreement as alleged by the Defendant, then this RMB5,000,000 could not be a deposit forfeitable by the Plaintiff under P’s Cooperation Agreement as alleged by the Plaintiff.

15.  From pages 9-11 of the Qianhai Court Judgment, the Qianhai Court analysed the evidence in relation to the Plaintiff’s and the Defendant’s respective versions of 《合作协议》, and found that the Defendant’s version of 《合作协议》, that is, D’s Cooperation Agreement, reflects the true meaning intended by the parties. In the concluding paragraph for this finding, the Qianhai Court held:-

“[The Plaintiff] 对于其主张的《合作协议》原件的表述屡次发生变化，先是说原件在香港，后又说交给香港法院了，至本案庭审时才说已经被原告撕毁。而按照正常的行为模式，如《合作协议》真的被 [the Defendant] 在非法拘禁期间撕毁，[the Plaintiff] 应在第一次公安机关询问时就告知公安机关，故本院认为应以其最初的陈述为准，不能认定 [the Plaintiff] 主张的《合作协议》原件已被 [the Defendant] 撕毁，[the Plaintiff] 亦无法证明存在另一份与 [the Defendant] 提供的《合作协议》内容不同的协议，也不能认定 [the Defendant] 本案中提交的《合作协议》是 [the Plaintiff] 在被非法拘禁期间受胁迫而签写的。同时， [the Defendant] 巳提供证据证明其本案中提供的《合作协议》是 [the Plaintiff] 于非法拘禁前就已经签署，故本院对该份《合作协议》系 [the Plaintiff] 真实意思表示予以确认。” (emphasis added)

16.  In other words, upon assessment of the relevant evidence, the Qianhai Court found that D’s Cooperation Agreement reflected the parties’ intention. It then went on to order the Plaintiff to repay the Defendant the RMB5,000,000. Logically, the Qianhai Court did not accept P’s Cooperation Agreement.

17.  The Plaintiff appealed to 广东省深圳市中级人民法院 (the “Shenzhen Intermediate Court”). By its judgment dated 10 March 2021 (the “SZ Court Judgment”), the Shenzhen Intermediate Court dismissed the appeal and upheld the Qianhai Court Judgment. The parties maintained their respective stances before the Shenzhen Intermediate Court. On page 24, the Shenzhen Intermediate Court identified the issues to be (1) whether to believe D’s Cooperation Agreement or P’s Cooperation Agreement; and (2) whether the Plaintiff should return the subject sum to the Defendant. Having analysed the evidence on pages 24-25, the Shenzhen Intermediate Court accepted D’s Cooperation Agreement, and therefore upheld the Qianhai Court Judgment.

18.  For convenience, I shall refer to the Qianhai Court Judgment and the SZ Court Judgment collectively as the “PRC Judgments”, and the Qianhai Court and the Shenzhen Intermediate Court collectively as the “PRC Courts”.

VI.  ENFORCEMENT OF QIANHAI COURT JUDGMENT

19.  According to the 恢复强制执行申请书 (application for resumption of enforcement filed by the Defendant with the Qianhai Court on 2 February 2023:-

(1)  In 2022, an enforcement was undertaken, but no asset was found for the enforcement.

(2)  Recently, the Defendant discovered assets amenable to enforcement, and so made the application.

20.  According to the Defendant, only RMB167,890.79 was recovered. The Defendant says that he would proceed to enforce the PRC Judgments against the Plaintiff in Hong Kong, although Mr Sunny Chan (leading Mr Samkei Chan), counsel for the Defendant, told me that the Defendant has still not made any such application.

VII.  THE DEFENDANT’S GROUNDS FOR STRIKING OUT

21.  The Defendant’s Summons specifies abuse of process as the only ground for striking out. In his supporting affirmation, that is, the Affirmation of Wei Zhongxia filed on 1 April 2025 (the “Affirmation of Wei”), the Defendant relies on PRC Judgments only. There is no dispute that by this supporting affirmation, the Defendant could rely on issue estoppel and Henderson v Henderson type of abuse of process.

22.  There is another type of abuse of process the Defendant would like to rely upon. At §13 of the Affirmation of Wei, the Defendant deposed that he would be obtaining the Writ of Summons in HCA 1436/2017 mentioned in the Qianhai Court Judgment and would provide a copy when available. In his reply affirmation, that is, the 2^nd Affirmation of Wei Zhongxia filed on 16 July 2025 (the “2^nd Affirmation of Wei”) , the Defendant produced a copy of the Writ of Summons in HCA 1436/2017, saying at §27 of the 2^nd Affirmation of Wei that the Plaintiff’s assertions in the two actions are “fundamentally different” and “it is an abuse of process for the Plaintiff, with full knowledge of the facts, to now advance a claim that is diametrically opposed to his position” in HCA 1436/2017. As a preliminary point, Mr Billy Ma, counsel for the Plaintiff, submits that this should not be permitted in the reply affirmation given that this evidence was new evidence, while Mr Chan submits that HCA 1436/2017 was the Plaintiff’s own action and was already referred to in the Qianhai Court Judgment exhibited to the supporting affirmation. I shall deal with this preliminary point when I deal with this ground of striking out.

VIII.  ISSUE ESTOPPEL

23.  The legal principles in relation to issue estoppel are well established. The applicant relying on issue estoppel in a striking out application has to prove that it is plain and obvious that:-

(1)  The earlier judgment relied upon must be of a court of competent jurisdiction, final and conclusive and on the merits;

(2)  The parties to the earlier judgment are identical; and

(3)  The issues decided by the earlier judgment and the issues in the instant proceedings are identical.

See Zheng Zhenxin v Chan Chun Keung [2018] HKCFI 2284 at §30 per B Chu J.

24.  There is no dispute that the PRC Courts are of competent jurisdiction, and that the parties are identical. Mr Ma submits that the PRC Judgments are (1) not final; (2) not on merits; and (3) not on identical issues. I shall discuss them in turn.

A.  Finality

25.  In relation to the issue of finality of a foreign judgment[1], one normally would have foreign legal opinion. In the present case, the Defendant did not adduce any such opinion in support of the Defendant’s Summons. In such circumstances, understandably, on 16 May 2025, the Registrar made an order that “[n]o legal opinion for PRC legal expert is allowed for arguing against the Summons”. There is no appeal against that order, and thus before Master KW Wong as well as before me, there was and is no PRC legal opinion on the issue of finality of the PRC Judgments.

26.  In the Plaintiff’s affirmation filed on 20 June 2025 in opposition to the Defendant’s Summons, namely, the 5^th Affirmation of Tsoi Chung Tat Prince, the Plaintiff refers at §19-20 to the relevant PRC statutory provisions, in particular, 中华人民共和国民事诉讼法, for the point that a retrial would be permitted under certain circumstances pursuant to the “trial supervision system” (審判監督程序), and therefore the PRC Judgments are not final. The Plaintiff is a factual deponent, and is not qualified to give evidence on this matter. I shall disregard such evidence.

27.  That said, the availability of retrials under certain circumstances pursuant to the trial supervision system under the PRC law is, in my view, a fact of which the Hong Kong Courts can take judicial notice. This fact has been mentioned in various cases over the years, for example, the Court of Appeal in Lee Yau Wing v Lee Shui Kwan [2007] 2 HKLRD 749 and Wu Wei v Liu Yi Ping, CACV 32/2009, 27 March 2009 and the Court of First Instance in Chiyu Banking Corporation Limited v Chan Tin Kwun [1996] 2 HKLRD 395 (Cheung J, as Cheung JA then was); Bank of China Limited v Yang Fan [2016] 3 HKLRD 7; Zheng Zhenxin v Chan Chun Keung, supra; Jiang Xi An Fa Da Wine Co. Ltd v Zhan King [2019] HKCFI 2411 (Lisa Wong J); First Laster Limited v Fujian Enterprises (Holdings) Company Limited [2020] HKCFI 495 (DHCJ To) and Chan Benjamin Ki-Wood v Young Won Ken and Ors [2023] HKCFI 240 (Recorder Eva Sit SC).

28.  The real question is, does the availability of such retrial under the trial supervision system per se render the PRC Judgments not final? 

29.  In Chiyu Banking Corporation Limited v Chan Tin Kwun, supra, the plaintiff bank obtained a judgment against the defendant guarantor in the Fujian Intermediate People’s Court. The defendant appealed to the Fujian Higher People’s Court but the appeal was dismissed. Subsequently, the defendant presented a petition to the Fujian People’s Procuratorate for a retrial of the action conducted by the Fujian Intermediate People’s Court under the trial supervision system. The plaintiff bank commenced action to enforce the PRC judgment under common law, and the defendant applied to stay the action. In issue was whether the PRC judgment in that case, on which the plaintiff bank relied and applied to enforce in Hong Kong, was final and conclusive (398C). PRC legal opinion was adduced. Cheung J (as Cheung JA then was) held that:-

(1)  Hong Kong law applies to determine whether a judgment is final and conclusive, although the effect of the judgment is a matter for the foreign law. A judgment is final and conclusive when it is res judicata between the parties (398G-I). I add that put another way this question is regarded as a hybrid question of Hong Kong law and foreign law, because it is for the Hong Kong law to define the criteria for determining the finality of the foreign judgment but whether the criteria are satisfied is a question of fact-findings of what the foreign law is: see Zheng Zhenxin v Chan Chun Keung, supra at §42.

(2)  A judgment is still final and conclusive even pending appeal. The judgment must be assumed to be valid until interfered with by a higher tribunal (398J-399A). It is different when it is the very court which pronounced the judgment may alter the judgment (399A-B; 399D-E).

(3)  The PRC judgment in question would be liable to be altered by the intermediate court which pronounced the judgment on a trial if the Supreme People’s Procuratorate would lodge a protest under the Civil Procedure Law. Although it would be rare for such a protest to be lodged, the very same court still retains the power to alter the judgment (399G-H).

(4)  Although no protest had been lodged, the procedure had already been invoked (400B).

(5)  Therefore, the PRC judgment was not final and conclusive.

30.  I highlight that the procedure for protest had already been invoked in that case, and therefore, it could be said that the PRC judgment in question was open to be set aside.

31.  In Lee Yau Wing v Lee Shui Kwan, supra, the plaintiff obtained a judgment against the defendant at a People’s Court in Qingyuan ordering the defendant to pay HK$199,000, and the judgment was upheld by the Qingquan Intermediate People’s Court. The defendant then made a civil complaint to the Guangdong High Court and upon review, the complaint was dismissed. The plaintiff then commenced an action in Hong Kong to enforce the PRC judgment, and obtained summary judgment against the defendant. The defendant appealed to the Court of Appeal.

32.  In that case, the judgment of the majority of the Court of Appeal (Cheung and Yuen JJA) can be summarised in the following:-

(1)  The issue of finality of the PRC judgment in question was not argued in the first instance. The defendant was acting in person (§8). The Court of Appeal directed parties to file expert evidence, although the defendant was unable to due to financial constraint (§8). The Court of Appeal invited amicus to assist the Court. (§8)

(2)  The burden lied upon the plaintiff in that case to prove that the PRC judgment was final and conclusive and such burden would include adducing PRC legal opinion to prove that (§9).

(3)  When a plaintiff would like to enforce a PRC judgment, the existence of the trial supervision system gave rise to an argument over whether a PRC judgment was final and conclusive (§15).

(4)  Hong Kong Courts had dealt with similar circumstances where the trial supervision system was relied upon in relation to the finality and conclusiveness of a PRC judgment, but the Court of Appeal had not decided the matter one way or the other (§15).

(5)  The expert evidence opined that it would be rare for ordering a retrial under the trial supervision system (§§16-17).

(6)  The defendant had not invoked the supervision system at all, although the defendant complained during the hearing before the Court of Appeal that there was misfeasance or dereliction of duties on government officials (§21).

(7)  It would be inappropriate for the Court to rely on written PRC legal opinion without oral evidence to decide in a summary judgment application the most arguable issue before the Court, namely, whether the trial supervision system would per se render a PRC judgment not final and not conclusive, or whether the Court would have to decide the matter according to the actual circumstances to see whether a retrial would be likely (§§23-24).

(8)  For the Hong Kong Court to say that there would or would not be any retrial of the matter under the trial supervision system would involve value judgment. It would be inappropriate for the Court of Appeal to discuss this in an appeal against summary judgment (§26).

(9)  The question involved in the case was of public importance, and the expert should attend court for cross-examination on the matter (§27).

(10)  The matter should proceed to trial. Hopefully the defendant would obtain legal aid so that the defendant would be able to obtain a PRC legal opinion to assist the Court on this question. The Secretary for Justice should also consider joining the proceedings and providing a PRC legal opinion to assist the Court (§29).

33.  In my view, (7) to (10) above should be understood in the context of that case – at the first instance, there was no or no expert evidence on the trial supervision system, and expert evidence was adduced only before the Court of Appeal, and the expert evidence was from one side only. Therefore, the majority did not think it appropriate to determine the matter summarily. I do not understand the majority to say that even where both sides have adduced expert evidence and the expert evidence is of the same view, the Court should still proceed with trial for cross-examination of the experts. One must remember that while whether a foreign judgment is final and conclusive is determined with reference to Hong Kong law, the effect of a foreign judgment is a matter for foreign law regarded as facts by Hong Kong Courts. For example, hypothetically, if both experts take the view in a particular case that in that particular case, there is no chance for the trial supervision system to be invoked and so there is no chance for any retrial, I do not think that the Court should still proceed with trial before it could determine the finality and conclusiveness of the PRC judgment. In other words, I do not regard the majority there as pronouncing any general legal principle whereby once a PRC judgment is being enforced under common law, there must be a trial. Nor do I regard it as pronouncing any general principle that expert evidence must be needed to prove the finality and conclusiveness despite the trial supervision system. For example, hypothetically, if the defendant makes it clear that in no circumstances would he rely on any retrial available under the trial supervision system, I think the Court should be able to make a fact-finding that the trial supervision system is irrelevant when the defendant takes such a stance. These may be extreme examples, but these demonstrate that it is a matter of degree and it is a fact-finding on a case-by-case basis.  

34.  The next case I would like to consider is Wu Wei v Liu Yi Ping, supra. In that case, the application before the Court of Appeal was an application for an order of stay of the first instance decision pending appeal. To appreciate what the Court of Appeal actually ruled, it is necessary to understand the context of the decision at the first instance being appealed made by DHCJ Lisa Wong SC as she then was) in HCA 1452/2004, 30 January 2009.

35.  According to the decision in HCA 1452/2004, 30 January 2009, the plaintiff and the defendant there was husband and wife until the finalisation of their divorce on 7 April 2006 by a PRC judgment in the defendant’s petition in certain PRC proceedings (§3). In the PRC proceedings, the plaintiff disputed the validity of an agreement which allocated assets between the plaintiff and her husband (§§7 and 32), and so, the PRC judgment, besides ordering the divorce, also held that the parties were entitled to the assets according to that agreement (§33). At the first instance, the application before her ladyship was an application under section 21L of the High Court Ordinance and Order 29 rule 2(3) of the Rules of the High Court (Cap. 4A) for a payment into court by the defendant in that case pending trial. The threshold was whether there was any serious issue to be tried, and the defendant there asked her Ladyship to answer the question in the negative, relying, among others, the enforcement of the PRC judgment and res judicata based on the PRC judgment (§§94-95). While the defendant adduced expert evidence, the plaintiff did not (§98). However, the defendant’s expert did not address the trial supervision system at all, and separately, her Ladyship found that the expert evidence was fundamentally flawed in the opinion expressed (§§97-100). Relying on Lee Yau Wing v Lee Shui Kwan, supra, for the proposition that whether the existence of the trial supervision system per se rendered a PRC judgment inconclusive and not final involved complicated legal questions that could not be determined in the absence of trial, her Ladyship found that there was a serious issue to be tried (§§100-101). Eventually, her Ladyship ordered payment into court by the defendant.

36.  The defendant appealed. Pending appeal was the defendant’s application for an order of stay of her Ladyship’s order for payment into court in Wu Wei v Liu Yi Ping, supra. In considering the merits of the defendant’s case pending appeal (merits being a material consideration to determine whether to order a stay or not), the Court of Appeal applied the reasoning in Lee Yau Wing v Lee Shui Kwan, supra that the question of whether the trial supervision system would render a PRC judgment not final and not conclusive was a question of public importance and the Court should not resolve such a question without a trial, (§7) essentially agreeing with her Ladyship that there was a serious issue to be tried in this regard.

37.  In Zheng Zhenxin v Chan Chun Keung, supra, a case heavily relied upon by the plaintiff, one of the applications before B Chu J was the defendant’s application to strike out the plaintiff’s action relying on res judicata and issue estoppel based on mainland judgments. The plaintiff did not apply for any retrial within time, and so no order for retrial would be permitted (§52). The plaintiff, in resisting the striking out application, adduced expert evidence to the effect that the PRC judgments did not concern the same parties, did not concern the same subject matters, and did not concern the same relief. Further, the PRC courts suggested that the plaintiff should commence fresh proceedings in Hong Kong for relief (§§54-55). The defendant’s expert, according to the decision, did not say much in traversing such opinion (§56). It was in this context that her Ladyship said that the plaintiff’s expert opinion should not be ignored at that stage and there was a strong argument that the PRC judgments in questions were not final and conclusive (§59). I note that the trial supervision system was not a matter relied upon.

38.  Then came Jiang Xi An Fa Da Wine Co. Ltd v Zhan King, supra, also heavily relied upon by the plaintiff. In that case the plaintiff made an application for interim relief in aid of PRC proceedings under section 21M of the High Court Ordinance (Cap 4). One of the necessary conditions before a Hong Kong Court could grant an interim relief in aid of PRC proceedings was that the judgment that would be given by the PRC Court “may be enforced” in Hong Kong (section 21M(1)(b)), and for the enforcement purpose in that case, it was a common law enforcement and thus the judgment to be enforced had to be final and conclusive. Lisa Wong J (as her Ladyship had become) noted at §57 that “[t]he issue of whether the ‘trial supervision’ system per se would render a PRC judgment inconclusive and not final has been raised in the Hong Kong courts on a number of occasions as a ground of defence to actions for the enforcement of PRC judgments.”  At §86, her Ladyship said that “[t]he picture as to whether such procedure would per se render a PRC judgment not final and/or inconclusive has become less definite and more unclear after Chiyu Banking Corporation Limited v Chan Tin Kwun, supra”. After referring to Lee Yau Wing v Lee Shui Kwan, supra and Wu Wei v Liu Yi Ping, supra, her Ladyship said at §89:-

“In short, there is no definite authority that the existence of the ‘trial supervision’ procedure would deprive a PRC judgment of its otherwise final and conclusive character. Rather, the matter has to be proved at trial at which evidence of material PRC law would have to be adduced by the parties and assessed by the court in the actual enforcement proceedings.”

39.  Since her Ladyship was only concerned with whether the potential judgment “may be” enforced in the section 21M application, and whether the judgment would actually be enforceable would be a matter for the enforcement proceedings, her Ladyship did not have to, and did not, determine the matter, having been satisfied that the potential judgment would at least be a judgment that “may be enforced”. (§90)

40.  The next case is Chan Benjamin Ki-Wood v Young Won Ken and Ors, supra, a case heavily relied upon by the defendant. Like in the present case, the defendants there applied to strike out the amended statement of claim on the ground that the claim was bound to fail and that of issue estoppel. In that case, five PRC judgments were relied upon for both grounds. For two of the PRC judgments, applications for retrial under the supervision system had been applied, but the grounds for such applications were not made known to the Court.

41.  In the Hong Kong action, the plaintiff’s case was primarily in unlawful act conspiracy (§35). For the striking out application, in support of the ground that the claim was bound to fail, the defendant raised that the PRC judgments were evidence of the PRC law which ruled that there was no unlawfulness in the act and so there was no unlawful act conspiracy (§40). Recorder Eva Sit SC agreed with the defendant and ruled that the PRC judgments were evidence of the PRC law (§§39-44), and therefore struck out the plaintiff’s claim. Her Ladyship addressed the issue of finality of the PRC judgments in dealing with this ground of evidence of PRC, and held at §47(1) that the plaintiff’s submissions that finality was needed for accepting a foreign judgment as evidence of the foreign law were not supported by case authorities, but in any event went on to rule at §47(2) that the PRC judgments were final. Therefore, in my view, her Ladyship’s view on the finality of the PRC judgments was made obiter in the context of deciding whether PRC judgments could be accepted as evidence of the PRC law, but not in the context of issue estoppel. I do not think that the defendant can simply rely on this decision to support his argument that the PRC judgments in the present case are final.

42.  The next case I should discuss is Sunsco International Holdings Limited v Lin Chunrong [2025] HKCFI 5238, handed down on 7 November 2025 (just about a month before the hearing). That case was a judgment upon trial with expert evidence on the issue of finality of the PRC judgment in question. None of the parties referred this case to me prior to the hearing. This case came to my attention only shortly before the hearing. I drew the parties’ attention to this case, and directed the parties to file written submissions on this case after the hearing.

43.  In that case, one of the issues was the finality of the PRC judgment in question. Parties’ expert evidence on this issue was heard. At §12.5, DHCJ Jonathan Wong held that the PRC judgment in question was final and conclusive. Some of the reasons in support of his holding was substantiated by expert evidence (§12.5(1) and (3)) while others seem to be pure reasoning. At §13, his Lordship went on to consider whether the trial supervision system would render the PRC judgment not final and not conclusive. At §13.2, his Lordship held that the paramount consideration for this question would be the likelihood of an order of retrial under the system, to be determined on “factual evidence or expert evidence or a combination thereof”. Then on the facts of that case, at §13.3, his Lordship held that the likelihood was “very improbable”, and that the PRC judgment was final and conclusive.

44.  As that judgment was made upon trial with expert evidence on the issue of finality of the PRC judgment in question, any such view as in Lee Yau Wing v Lee Shui Kwan, supra and Wu Wei v Liu Yi Pin, supra that the finality of a PRC judgment in the light of the trial supervision system should only be determined at trial upon expert evidence was irrelevant to that case.

45.  As explained above, DHCJ Jonathan Wong’s view that the PRC judgment in that case was final and conclusive was formed upon the expert evidence and the facts in that case. While his Lordships’ list of considerations at §§12.5 and 13.2 in determining the finality of a PRC judgment is no doubt helpful, the Court would need proper evidence to go through those considerations.

46.  The last case I should consider is the decision handed down by DHCJ MK Liu on 13 January 2026 in Beijing Renji Real Estate Development Group Co., Ltd v Zhu Min [2026] HKCFI 197. In that case, the plaintiff applied for summary judgment to enforce a PRC judgment. The issue for his Lordship was, as set out in §42(1), whether the PRC judgment was not final and conclusive by virtue of the trial supervision system. In other words, the parties did not dispute that the PRC judgment itself would otherwise be final and conclusive. It was in that context that his Lordship applied Sunsco International Holdings Limited v Lin Chunrong and notably, he still had to consider the parties’ respective expert evidence (§4) to consider this question.

47.  Having reviewed the above cases, I venture to summarise the legal position as follows:-

(1)  The burden lied upon the one who would like to rely on PRC judgments to prove that the PRC judgment was final and conclusive and such burden would include adducing PRC legal opinion to prove that (Lee Yau Wing v Lee Shui Kwan, supra at §9: see §32(2) above);

(2)  Whether the trial supervision system in the PRC would render a PRC judgment not final and not conclusive is a question of fact the Court has to determine with expert evidence, if this question is in issue; and

(3)  Whether a trial with oral expert evidence is necessary to determine the question or whether summary procedures would be sufficient depends on the evidence of that case. It is not a must that oral evidence must be taken before the question can be determined: see §§33 and 46 above.

48.  In the present striking out application:-

(1)  The Defendant carries the burden to prove that the PRC Judgments are plainly and obviously final and conclusive;

(2)  The Defendant has adduced no expert evidence at all on the finality of the PRC Judgments;

(3)  The Court cannot simply take judicial notice that the PRC Judgments are final and conclusive simply because the SZ Court Judgment was an appeal judgment upholding the Qianhai Court Judgment;

(4)  In any event, the Defendant has not issued any notice under section 59(3) of the Evidence Ordinance (Cap. 8) indicating that he would rely on some previous judgments or decisions that the PRC Judgments were final and conclusive;

(5)  There is also no evidence, expert or factual, to explain the likelihood or unlikelihood of an order of retrial under the trial supervision system, an issue raised by the Plaintiff; and

(6)  So, in my view, the Defendant fails his burden to prove that the PRC Judgments are plainly and obviously final and conclusive.

49.  This alone is sufficient for me to dismiss the ground of issue estoppel.

B.  Identity of issues

50.  For the sake of completeness, I also express my view on the identity of issues.

51.  In identifying the issues, “[t]he courts must be cautious before concluding that the foreign court made a clear decision on the relevant issue because the procedures of the court may be different and it may not be easy to determine the precise identity of the issues being determined”: see Re RZ3262019 Limited (in Liquidation) [2025] HKCFI 4350.

52.  In the present case, as explained above, the PRC Judgments were concerned with the nature of the RMB5,000,000. While the parties’ respective cases put forward before the PRC Courts touched upon the nature of the RMB15,000,000 which is the subject claim of the Plaintiff’s action here, the PRC Courts did not have to determine that at all, as neither the P’s Cooperation Agreement nor the D’s Cooperation Agreement concerned the RMB15,000,000. This is because it could be that the Plaintiff’s case that the Defendant had to pay it RMB20,000,000 in total could still be right, but just that the PRC Courts ruled, as it did, that RMB5,000,000 out of it had to be repaid to the Defendant under D’s Cooperation Agreement, which the PRC Courts accepted to be true. This scenario is not inconsistent with the Defendant’s obligation to pay RMB15,000,000 to the Plaintiff on the Plaintiff’s case.

53.  Therefore, exercising the caution in identifying the issue, I find that the issue in the PRC Judgments was confined to the nature of the RMB5,000,000 only. In the circumstances, I am not satisfied that the issues are plainly and obviously identical. For the lack of identity of issues, I would also dismiss the ground of issue estoppel.

IX.  HENDERSON V HENDERSON ABUSE

54.  Given my finding that there is no identity of issues, having considered the matters in the round, I think the Plaintiff’s claim cannot be said to be any abuse in Henderson v Henderson sense or any collateral attack. There can also be no suggestion that the issue of RMB15,000,000 could and should have been raised in the PRC proceedings, when it was the Defendant himself who had commenced the Hong Kong proceedings in respect of that RMB15,000,000 in Hong Kong but not in the PRC.

55.  Therefore, I dismiss the ground of abuse.

X.  INCONSISTENT CASES

56.  Finally, the Defendant submits that the Plaintiff puts forward a case here impermissibly inconsistent with that in HCA 1436/2017, and that this constitutes an abuse.

57.  I highlight the following relevant legal principles:-

(1)  “Where a party with full knowledge of the facts advances a claim which is diametrically inconsistent with his allegations in previous proceedings, the integrity of the justice system would be no less compromised simply because his previous allegations were not followed through to judgment” (emphasis added). In the circumstances, the Court may find abuse and strike out the inconsistent claim on this basis: see Chan Chun Chuen v Kao, Lee & Yip (a firm), unrep., HCA 597/2015, 12 October 2017 at §30 per DHCJ Anson Wong SC.

(2)  “Where the basis of striking out is that the position adopted in the present proceedings is ‘diametrically inconsistent’ with the case adopted in previous proceedings, it is incumbent on the applicant to identify with clarify specifically which parts of the pleading are said to be so inconsistent. It is no answer at all to say that the summons seeks to strike out the entirety of the statement of claim, or that another part of the supporting affidavit … or that parts of the skeleton submissions…” (emphasis added): see Chan Chun Chuen v Kao, Lee & Yip (a firm) [2019] HKCA 170 at §12 per Kwan JA (upholding DHCJ Anson Wong SC’s decision).

(3)  Credible explanation may show that there was no abuse: see Tang Wai Keung v Wong Shui Fong & Another [2021] HKCFI 3627 at §27 per Recorder William Wong SC.

58.  As mentioned at §22 above, this ground of inconsistent cases was raised for the first time only in the Defendant’s reply affirmation. The reply affirmation was filed on 16 July 2025, just two weeks before the hearing of 31 July 2025 before Master KW Wong. Further, the Defendant did not identify or explain how the cases were inconsistent.

59.  In my view, it would be unfair to the Plaintiff when there was no opportunity to explain the difference, if any. It would also be unfair to the Plaintiff when there was no opportunity to explain the state of his knowledge about the cases. More fundamentally, it would be unfair to require the Plaintiff to explain all these when the Defendant had not even set out what pleas were inconsistent and how they were regarded as inconsistent until his counsel submissions for the hearing. I pause to note that for the hearing before Master KW Wong, the Plaintiff did not apply for leave to file any affirmation in reply to this new evidence, but given that the hearing would take place in two weeks’ time after the Defendant’s reply affirmation, I would think that it should be the Defendant to apply for an adjournment for the Plaintiff to file evidence if the Defendant would like fairly to press ahead with this late ground of striking out. If the Defendant did not do so, he took the risk that the Court would not entertain this late ground. In fact, at the hearing before Master KW Wong (transcript at 19I-N), the Plaintiff already registered his complaint that this ground was raised late. The Defendant’s submissions (made before Master KW Wong) that the Plaintiff knew of HCA 1436/2017 and the Defendant had already drawn the Plaintiff’s attention to that action, in my view, do not help the Defendant, because none of these would indicate that the Defendant would take the ground of inconsistent cases until the reply affirmation.

60.  In the present case, given that the Writ in HCA 1436/2017 was not served and had expired, I can see that there may well be explanation why apparently inconsistent claim here is commenced, and I do not see any basis for me to find it plain and obvious that the apparent inconsistency could not be credibly explained and would constitute an abuse.

61.  In the circumstances, I dismiss the ground of inconsistent cases.

XI.  CONCLUSION

62.  Therefore, I make the following order:-

(1)  The Plaintiff’s appeal be allowed;

(2)  The Master’s Order made on 31 July 2025 be set aside;

(3)  The Defendant’s Summons be dismissed;

(4)  Costs of the appeal be to the Plaintiff, to be summarily assessed on paper; and

(5)  Costs of the Defendant’s Summons be to the Plaintiff, summarily assessed at HK$260,000.

63.  For the costs assessment in §(3) above, the Plaintiff had filed a statement of costs before the hearing. Given that there were two rounds of written submissions after the hearing, I direct the Plaintiff to lodge and serve an updated statement of costs within 3 days from today, and the Defendant to lodge and serve a list of objections within 3 days thereafter.

64.  I also make the following consequential directions for pleadings:-

(1)  The Defendant shall, within 21 days from today, file and serve Defence and Counterclaim, if any; and

(2)  The Plaintiff shall, within 14 days thereafter, file and serve Reply and Defence to Counterclaim, if any.

65.  Lastly, I thank counsel for their assistance.