BEIJING SONGXIANGHU ARCHITECTURAL DECORATION ENGINEERING CO., LTD v. KITTY KAM also known as WANG YU ZHI

HCA 1289/2022

[2026] HKCFI 2449

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1289 OF 2022

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DECISION

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Introduction and Procedural Background

1.  By Summons dated 3 April 2025 (“the Summons”), the Defendant (“D”)  seeks inter alia an order to restrain the Plaintiff (“P”)  from pursuing or continuing:

(1)  The freezing injunction application in England (claim no. CL-2025-000090)  against D (“the English Injunction Application”); and

(2)  The discovery proceedings in Singapore (HCA/OA 1198/2024)  against D (“the Singapore Discovery Application”).

2.  By Amended Inter Parte Summons dated 7 April 2025 (“the Amendment Summons”), D seeks to amend the Summons inter alia to include also an order declaring that the English Injunction Application was brought in breach of the undertaking provided in paragraph 5 of Schedule 2 to the Order of Anthony Chan J dated 13 January 2023 (“the Undertaking”).  The learned judge had granted inter alia a domestic Mareva injunction against D up to the amount of HK$253,048,682 (“the Sum”)  which P claimed D defrauded it of by representing to P that the Sum would be applied to invest in real estate projects which it transpired was never so applied.   As confirmed at the outset of today’s hearing, P did not object to the Amendment Summons.  I formally granted leave to amend the Summons in terms of the Amendment Summons at the beginning of today’s hearing.

3.  The Undertaking, being taken from the standard form wording under PD 11.2, states:

“ The Plaintiff will not without the leave of the Court begin proceedings against the defendant in any other jurisdiction or use information obtained as a result of an order of the Court in this jurisdiction for the purpose of civil or criminal proceedings in any other jurisdiction. ”

4.  The Undertaking was subsequently varied on two separate occasions by DHCJ KC Chan (“the Judge”):

(1)  By Order dated 27 September 2024:

“ 1. Leave be granted to the Plaintiff to institute discovery proceedings against third parties including but not limited to Standard Chartered Bank Singapore Limited in the courts of Singapore (“the Intended Proceedings”);

 2. Leave be granted to the Plaintiff to use information in this Action, including such information obtained from or resulting from Orders dated 13 January 2023, 9 August 2024 and 29 August 2024, for the purposes of the Intended Proceedings; ”

(“the First Leave Order”)

(2)  By Order dated 16 December 2024:

“ For the avoidance of doubt, the Plaintiff be released from the undertaking given under paragraph 5 of Schedule 2 of the Order made by the Honourable Mr Justice Anthony Chan dated 13 January 2023 to the extent of, and be at liberty to, enforce the Judgment entered herein on 25 October 2024[1], if it so desire, anywhere outside this jurisdiction. ”

(“the Second Leave Order”)

5.  On 15 November 2024, P commenced the Singapore Discovery Application against Standard Chartered Singapore (“SCS”)  seeking disclosure of bank accounts held by or controlled by D with SCS.  However, at the Registrar’s Case Conference on 4 December 2024, Senior Assistant Registrar Lee Yeow Wee David (“the Registrar”), indicated that the prevailing position in Singapore is that the alleged tortfeasor should be added as a party to non-party discovery proceedings and directed P to write to D including a draft amended originating application seeking to add D as a second respondent.  D’s position is that the proposed joinder is in breach of the Undertaking. 

6.  On 21 March 2025, P applied and obtained on an ex parte basis a freezing injunction order against D from Knowles J restraining D from disposing of, dealing with or diminishing her assets in England and Wales up to the value of £30M (“the English Injunction”).  The English Injunction was continued on the return date on 28 March 2025 by Butcher J notwithstanding D appeared and sought to discharge the same on the ground that the English Injunction Application had been taken out in breach of the Undertaking.  That decision is subject to an appeal which will be heard by the English Court of Appeal on 23 April 2026 (“the CA Appeal”).

Discussion

7.  Counsel (Mr Douglas Lam SC leading Ms Sabrina Ho, Mr Arthur Poon and Mr Alex Yeung, counsel, appeared for P, and Mr William Wong SC leading Mr Charlie Liu, counsel, appeared for D)  did not dispute that an “anti-suit injunction” could be granted if it is found that the English Injunction Application and/or the Singapore Discovery Application was in breach of the Undertaking.

8.  Accordingly, it was not disputed that the central question for this court is whether the English Injunction Application and the Singapore Discovery Application are each caught by the Undertaking which turns on the proper construction of the Undertaking, the First Leave Order and the Second Leave Order.

9.  Essentially, P’s position was:

(1)  Regardless of whether the English Injunction Application fell within the Undertaking (which it is denied), on a proper construction of the Second Leave Order, it must cover the English Injunction Application;

(2)  In any event, the English Injunction Application was never within the scope of the Undertaking having regard to its purpose and origin; and

(3)  The Singapore Discovery Application is covered by the First Leave Order.  D is joined as a nominal defendant and no orders are sought against D even after she is joined, so D cannot complain of any oppression against her but on the other hand, the First Leave Order was granted to enable P to obtain information directly from SCS and it could not have been intended that the discovery application “should ground to a halt” just because D is joined as a nominal party.

10.  On the other hand, D submitted that on a plain and literal reading of the Undertaking, the English Injunction Application and the Singapore Discovery Application are each caught by the Undertaking.

11.  As held by DHCJ To (as he then was)  in Agritrade Resources Limited & Anor v Ashok Kumar Sahoo [2021] HKCFI 685 at §121, the meaning and effect of an undertaking is a matter of construction for which the usual rules of statutory construction apply.  Furthermore, an undertaking has to be construed against the origin of the Mareva relief and the purpose for which the undertaking was given.

12.  It was explained in Agritrade Resources Limited that the court has two concerns that underpin the origin of the undertaking: (1)  avoiding the oppression of the defendant by the institution of multiple proceedings for enforcement of the domestic freezing order in several foreign countries at the expense of the ability of the defendant to defend the domestic proceedings; and (2)  preventing the enforcement of the freezing order in a foreign jurisdiction having a more far-reaching effect that in the home jurisdiction.  The theme (or rationale)  of the undertaking is to prevent abuse of the exceptional and extreme Mareva relief from being used as a means of oppression on the defendant.  To address these concerns, the undertakings are imposed: (1)  to ensure the court’s jurisdiction is not being abused or invoked on a temporary basis for tactical reasons or ulterior purposes; (2)  to ensure that a defendant will not be harassed more than necessary; and (3)  to enable the court to police circumstances in which the applicant sought to use the relief obtained as a means to obtain further or greater or oppressive relief against the defendant abroad.  See ibid, §122.

13.  To similar effect see also Eastgate Partners Limited v Suthi Tejavibulya & Ors (unrep)  CACV 289/2005, 29 March 2006, where Rogers VP held that a court granting Mareva relief is entitled to demand of the plaintiff that the litigation will indeed be conducted in the local jurisdiction, with a view to ensuring “that a defendant will not be harassed more than necessary and the court’s jurisdiction is not being invoked on a temporary basis for tactical reasons”.  To sue the same parties in two different jurisdictions in respect of the same claim might well be oppressive and can be restrained.  See §§11 and 15. 

14.  Having regard to the origin of the Mareva relief and the purpose of undertakings where a domestic Mareva injunction is granted, and the natural and ordinary meaning of the words used, I have no doubt that the Undertaking prohibits P from commencing any proceedings against D in any foreign jurisdiction without leave from the Hong Kong court.  It extends to all proceedings on the same subject matter as that of this Hong Kong action.

15.  In respect of the English Injunction Application, P submitted that the word “enforce” in the Second Leave Order was intended to cover post-judgment freezing order ancillary to the Part Judgment and not merely limited to execution of the Part Judgment in other jurisdictions. 

16.  Firstly, it was submitted that the natural and ordinary meaning of “enforce” simply means “to compel observance” (by referring to Words and Phrases Legally Defined (2025 Edn), p.1102)  and the meaning of “execution” is not limited to direct execution over assets of a judgment debtor (referring to The Zafiro [1960] P 1 at 14).   It was submitted that the court should not conflate “enforcement” with “direct execution”.

17.  Secondly, it was submitted that the circumstances in which the Second Leave Order was granted clearly show that the Judge’s intention and purpose was to “enable means which lead to an effective, actual observance of the Part Judgment, and not just hollow execution in the blind” given the previous flouting of court orders by D (by referring to the Judge’s Reasons for Decision dated 8 January 2025 ([2025] HKCFI 219), §§6 and 11, Reasons for Decision dated 1 November 2024 ([2024] HKCFI 3068), §§37 and 50(a), Decision dated 16 December 2024 ([2024] HKCFI 3614), §11 and Reasons for Decision dated 22 August 2024 ([2024] HKCFI 2194), §54.)  I was invited to have regard also to that fact that currently the Part Judgment remains unsatisfied and there is no visibility of where the Sum is.

18.  Thirdly, it was submitted that “enforce” is intended to cover all means leading to the actual observance of the Part Judgment, and in particular, intended to cover post-judgment freezing injunctions which are granted to secure the fruits of judgment by referring to China CITIC Bank Corp Limited (Quanzhou Branch)  v Li Kwai Chun & Ors [2018] HKCFI 1800 at §29 per DHCJ  Keith Yeung SC (as he then was); Emmott v Michael Wilson & Partners Ltd [2019] 4 WLR 53 at §53 per Gross LJ and Great Station Properties SA v UMS Holdings Ltd [2017] EWHC 3330 (Comm)  at §63 per Teare J.

19.  However, with greatest respect to Mr Lam, I was not persuaded by any of the above submissions.  I am of the view that leave to “enforce” the Part Judgment in the Second Leave Order was not intended to include the obtaining of a freezing injunction in England and Wales.

20.  It has been held that a freezing injunction is different in character from an orthodox interlocutory injunction in that it “does not enforce anything, but merely prepares the ground for a possible execution by different means in the future”.  The applicant “does not claim any interest in the assets and seeks an inhibition of dealings with them simply in order to keep them available for a possible future execution to satisfy an unconnected claim.” “Nor does Mareva injunction enforce the plaintiff’s rights even when a judgment has ascertained that they exist, for it merely ensures that once the mechanisms of enforcement are set in motion, there is something physically available upon which they can work”: see Convoy Collateral Ltd v Broad Idea International Ltd [2022] 2 WLR 703 per Lord Legatt JSC at §§84-85 citing Lord Mustill in Mercedes Benz AG v Leiduck [1996] AC 284 at 299B and 302.

21.  The characterization of a Mareva injunction as a step which may lead to enforcement or pave the way to enforcement rather than enforcement itself has also been confirmed by the English Court of Appeal in: (1)  Masri v Consolidated Contractors International (UK)  Ltd and others (No 2) [2009] QB 450 at §§123-124 per Lawrence Collins LJ; and (2)  Cyprus Popular Bank Public Co Ltd (in special administration)  v Vgenopoulous and others [2018] QB 886 at §§65-66 per Flaux LJ.

22.  Thus even if Mr Lam is correct that the English Injunction was a post-judgment injunction, which for reasons to be explained I do not accept, it is not allowed under the Second Leave Order granting leave to “enforce” the Part Judgment.

23.  As for what was intended by the Second Leave Order, contrary to Mr Lam’s submissions, the Judge in his Reasons for Decision (see [2025] HKCFI 219)  at §11 in relation to Second Leave Order drew the distinction between enforcement of a judgment elsewhere and seeking to apply for an interlocutory Mareva injunction in addition to the one already obtained in Hong Kong.  As to what the Judge had in mind when referring to enforcement of the Part Judgment elsewhere, this is clear from §10 where he mentioned that Mr Lam had “clarified and confirmed that P would now only be seeking by the remainder of the Leave Summons for leave to enforce the Part Judgment by, among others, registering the Part Judgment in Singapore under the Reciprocal Enforcement of Foreign Judgments Act 1959 and then taking such enforcement or execution procedures there”.  Thus what the Judge plainly intended was to allow P to enforce the Part Judgment by registration in Singapore and then take enforcement or execution procedures there.  In the same paragraph, the Judge noted that Mr Lam further clarified that P was seeking for the avoidance of doubt a release from the Undertaking to the extent that P be at liberty to enforce the Part Judgment in other jurisdiction as might be advised or desire.

24.  Mr Lam however submitted that §11 where the judge referred to “interlocutory Mareva injunction” when read together with §§8-9, the release was intended to exclude an application for enforcement of a worldwide Mareva abroad for which the guidelines set out in Dadourian Group International Inc v Simms v Others [2006] 1 WLR 2499 (as summarised by DHCJ To at §138 in Agritrade Resources Limited)  applied.  Not only was that not what was stated (the Judge would have stated “not seeking to apply to enforce the Mareva injunction obtained in Hong Kong” and deleted the words “in addition to the one it obtained in Hong Kong”), given that there is no suggestion that the Mareva injunction obtained from Anthony Chan J (as he then was)  was a worldwide Mareva, I am afraid this submission was not Mr Lam’s best point.

25.  Mr Lam also submitted that by granting leave to enforce the Part Judgment elsewhere this necessarily means leave was granted to commence proceedings under common law to enforce the Part Judgment and any ancillary applications part and parcel to those proceedings.  However, as a matter of fact, the English Injunction Application was commenced by separate originating process, by a Part 8 claim (claim no. CL-2025-000090)  whereas the action for recognition and enforcement at common law of the Part Judgment was commenced by a separate Part 7 claim (claim no. CL-2025-000087)  (“the Enforcement Action”). 

26.  Even if procedurally the separate claim was required, as a matter of substance over form, it is clear that the English Injunction Application was seeking a freestanding interlocutory injunction separate from the proceedings to enforce the Part Judgment in England.  The English Injunction Application was taken out under s.25 of the Civil Jurisdiction and Judgments Acts 1982 (“CJJA”)  which is equivalent of s.21M of the High Court Ordinance, Cap.4 in Hong Kong.  See Gee on Commercial Injunctions, 7^th Edn, §6-062, that proceedings under s.25 of CJJA are “freestanding proceedings brought solely for the purpose of obtaining the interim relief”.  

27.  It is made clear in the Part 8 claim (see para (2)  of the Details of Claim)  that a domestic freezing injunction and ancillary disclosure orders were interim relief in that it was sought pending determination of the Enforcement Action and the actual enforcement of the Part Judgment.  This is also consistent with P’s ex parte skeleton which characterized the relief sought as interim relief in aid of substantive proceedings taking place in any jurisdiction.  That is plainly contrary to what the Judge had said the Second Leave Order did not authorize, i.e. an interlocutory Mareva injunction in addition to the one obtained in Hong Kong. 

28.  I also do not accept P’s submissions that the English Injunction Application was a “post-judgment injunction” to enforce the Part Judgment which was not strictly speaking a Mareva injunction (relying on the decision of DHCJ To in Menno Leendert Vos v Global Fair Industrial Limited & Ors (unrep)  HCA 4200/1995, 25 March 2010 at §9)  and caught by what was “carved out” by the Judge.  The Part 8 claim plainly recognizes that there is no “judgment” as such pending the determination of the Enforcement Action.  Hence, there was a reference to the Part 7 claim for recognition and enforcement at common law of the Part Judgment and that the domestic freezing injunction was pending the determination of the Enforcement Action and actual enforcement of the Part Judgment.  In para (3), it was also recognized that there was a possibility that the Part Judgment is set aside and the underlying proceedings in Hong Kong would proceed to trial and in that eventuality, P seeks the injunction in support of those proceedings.

29.  In rejecting the submissions that the English Injunction is post-judgment injunction, I necessarily reject the alternative submissions of P that the Undertaking was not intended to debar applications for post-judgment injunction.  

30.  Firstly, it was submitted that the “two concerns” identified by DHCJ To in Agritrade Resources Limited were not engaged because it is not for enforcing the domestic Mareva elsewhere but to enforce the Part Judgment.  However, as already explained, the English Injunction Application was a separate application from the Enforcement Action in seeking another self-standing Mareva outside of Hong Kong in addition to the Mareva already obtained in Hong Kong.  At least some of the three rationales of the Undertaking already mentioned are engaged where D would be harassed more than necessary by proceedings in the UK in seeking further or greater relief (up to £30M)  on top of the Mareva already obtained in Hong Kong.

31.  Secondly, it was submitted that by obtaining a post-judgment Mareva to enforce the Part Judgment, the English Injunction Application did not fall within the Undertaking which only covers proceedings in respect of the same subject matter.  However, in the Part 8 claim, albeit in the alternative basis, it was clearly stated that that English Injunction was in support of the underlying claims in Hong Kong.  Moreover, in the absence of any authorities cited to me, I fail to see why as a matter of principle the fact that the granting of Part Judgment may have converted the underlying cause of action into a debt and suing on that debt takes it outside of a case of commencing proceedings in respect of the same subject matter in two jurisdictions which can be oppressive.

32.  As for the Singapore Discovery Application, it is clear from the terms of the First Leave Order that leave is only granted to commence discovery proceedings against third parties in Singapore.  D plainly is not a “third party”.  When P sought leave by Summons on 24 September 2025 for leave “against the Defendant and/or third party discovery proceedings against [SCS]”, P plainly understood and recognized at that stage that leave was specifically required for proceeding against D.

33.  Whilst it was submitted that D is only joined as a nominal party, there is no distinction in the First Leave Order between proceedings in which substantive orders or sought against D and where no substantive orders are sought.  Nor is there any distinction where D is joined as a substantive or nominal party.  In view of the fact that undertakings are as solemn, binding and effective as an order of the court (see e.g. Hussain v Hussain [1986] 1 All ER 961 at 963 per Sir John Donaldson MR and Koza Ltd v Koza Altin Isletmeleri AS [2021] 1 WLR 170 at §66 per Popplewell LJ), and breach of court orders may lead to contempt proceedings in appropriate circumstances, I would hesitate to read words into the order that is not there and the First Leave Order should be read strictly and literally.

34.  Whilst it was submitted by P that D cannot complain of any “oppression” simply because she is a party as a matter of procedure, and it is not disputed that no orders are made against her, I cannot accept that being a party to those proceedings, which would require her time and costs to attend and resist those proceedings, which Mr Lam accepted she would have the right to, that is not oppression or vexatious.  The fact of the matter is that the Singapore Discovery Application concerns the same subject matter as the Hong Kong action.  The whole purpose of that application was to trace and obtain disclosure regarding D’s account held with SCS which D said in these proceedings she was unable to provide any information about the whereabouts. To sue D in two jurisdictions in respect of the same claim to obtain the same relief could be considered oppressive.

Disposition and Orders

35.  In all, having considered all the submissions, I am of the view that the English Injunction Application and Singapore Discovery Application were in breach of the Undertaking and D is entitled to the orders sought in the Amended Summons.

36.  I hope to be forgiven if I have not expressly dealt with each and every one of the submissions made or authorities cited by counsel, which for the avoidance of doubt, I have considered.  However, due to the court’s desire to resolve this matter before the CA Appeal scheduled for hearing on 23 April 2026 and I have been informed that when leave was granted Popplewell LJ had inquired the status and result of D’s present application, I only set out herein the main arguments and my views necessary for disposal of this matter.

[Discussion on terms of the order and costs]