In brief
On 29 January 2024, the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and of the Hong Kong Special Administrative Region (“Arrangement“) has taken effect simultaneously in both Hong Kong and the Mainland. The Arrangement establishes the mechanism for the reciprocal recognition and enforcement of judgments in civil and commercial matters between the Mainland and Hong Kong. Certain procedural steps must be taken by the creditor to initiate and enable such recognition and enforcement process. This note provides a practical guidance for litigants intending to apply in Hong Kong for recognition and enforcement of a Mainland judgment in civil and commercial matters.
The Arrangement is implemented in Hong Kong through the Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance (Cap. 645) (“Ordinance“), with the relevant provisions on practice and procedures provided for in the Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Rules (Cap. 645A) (“Rules“) and Practice Direction 38 issued by the Hong Kong Judiciary.
1. Step One: Obtaining requisite documents from the original Mainland court
2. Step Two: Making a registration application to the Court of First Instance in Hong Kong
3. Step Three: Execution of a Registered Mainland Judgment
4. Other Procedures: Judgment debtor’s setting aside application
A creditor under a Mainland judgment in a civil or commercial matter shall obtain the following documents before applying for recognition and enforcement of the Mainland judgment in Hong Kong:
- A copy of the judgment duly sealed by the original Mainland court.[1]
- A certificate from the original Mainland court certifying that the subject judgment is a Mainland judgment in a civil or commercial matter that is effective in the Mainland.[2]
Depending on the terms of the Mainland judgment, the registration application shall be made within two years from the date on which non-compliance of the Mainland judgment first occurs or the date on which the Mainland judgment takes effect.[3]
The application to the Court of First Instance in Hong Kong for a registration order to register the Mainland judgment should be made ex parte by originating summons supported by an affidavit.[4] The affidavit must exhibit the following documents:
- A copy of the Mainland judgment duly sealed by the original Mainland court.[5]
- A certificate issued by the original Mainland court certifying that the subject judgment is a Mainland judgment in a civil or commercial matter that is effective in the Mainland.[6]
- A copy of proof of identity of the creditor applicant (for natural person) or the authenticated copy of the relevant incorporation document along with a copy of the proof of identity of one director or authorized representative of the creditor applicant (for body corporate).[7]
The creditor should also file a draft registration order, a draft notice of registration, a duly completed form containing particulars of the Mainland judgment and a statement of costs for a summary assessment of costs.[8]
The creditor applicants for an ex parte registration order have a continuing duty of making a full and frank disclosure to the Hong Kong court. Even after the initial submission of the application, applicants are still required to keep the court informed of any latest development in the case, in particular where there is further evidence that comes to their attention which is relevant to the validity and / or enforceability of the Mainland judgment. The applicant must immediately inform the court if there is any change of circumstances that would render the basis for granting the registration order no longer valid and sustainable (for example where the Mainland judgment is stayed or set aside, etc.).[9]
Upon obtaining the registration order from the Hong Kong Court of First Instance, the creditor must serve a notice of registration on all other parties against whom the Mainland judgment may be enforced.[10] A judgment creditor could only commence the enforcement procedure of the registered Mainland judgment until the expiry of the time limit for the judgment debtor to make a setting aside application or if such application has been made, the conclusion thereof.[11]
A registered Mainland judgment can be enforced in Hong Kong as if it were a judgment originally issued by the Hong Kong court on the day of registration.[12]
To initiate execution on a registered judgment, the creditor must produce the following documents to the Registrar of the High Court:
- An affidavit of service of the notice of registration of the judgment.
- An affidavit containing the prescribed particulars.
- Any order made by the Hong Kong court in relation to the Mainland judgment.[13]
Depending on the assets held by the judgment debtor, the judgment creditor may commence the proper procedure to enforce the registered Mainland judgment in Hong Kong, for example, garnishee proceedings, charging order proceedings, writ of execution, etc.
The debtor under a registered Mainland judgment can apply to set aside the registration order generally within 14 days from the date of service of notice of registration.[14] There are a number of grounds for the setting aside application, including (but not limited to)[15]:
a. The jurisdictional requirement is not satisfied in respect of the original proceedings for the registered judgment.
b. The defendant to the original proceedings for the registered judgment was not summoned to appear in the original Mainland court according to the law of the Mainland, or the defendant was so summoned but was not given a reasonable opportunity to make submissions or defend the proceedings.
c. The registered judgment was obtained by fraud.
d. The original proceedings for the registered judgment were accepted by a court in the Mainland after proceedings in respect of the same cause of action between the same parties were started in a court in Hong Kong.
e. A court in Hong Kong has given a judgment on the same cause of action between the same parties.
f. A court in a place outside Hong Kong has given a judgment on the same cause of action between the same parties, and the judgment has already been recognized or enforced by a court in Hong Kong.
g. An arbitral tribunal has made an arbitral award on the same cause of action between the same parties in an arbitration for which the place of arbitration was in Hong Kong.
h. An arbitral tribunal has made an arbitral award on the same cause of action between the same parties in an arbitration for which the place of arbitration was not in Hong Kong, and the award has already been recognized or enforced by a court in Hong Kong.
i. The enforcement of the registered judgment is manifestly incompatible with the public policy of Hong Kong.
j. The registered judgment has been reversed or otherwise set aside pursuant to an appeal or a retrial. A number of types of Mainland judgments cannot be recognized or enforced in Hong Kong under the Arrangement. Further, an application for registration order may be met with a debtor’s request for security for costs to be paid into the Hong Kong court pending the resolution of any setting aside application.
[1] Section 5(2)(a) of the Rules.
[2] Section 5(2)(b) of the Rules.
[3] Sections 10(1)(b)(ii) and 12 of the Ordinance.
[4] Section 4 of the Rules. The Affidavit should contain particulars as set out at Sections 5(3), 5(4) and 6 (and Sections 7 to 12, where applicable) of the Rules.
[5] Section 5(2)(a) of the Rules.
[6] Section 5(2)(b) of the Rules.
[7] Section 5(1) of the Rules.
[8] Paragraph 7 of Practice Direction 38.
[9] Paragraph 10 of Practice Direction 38.
[10] Section 13(3) of the Ordinance.
[11] Section 27 of the Ordinance.
[12] Section 26 of the Ordinance.
[13] Section 19 of the Rules.
[14] Section 21 of the Ordinance.
[15] Section 21 of the Ordinance.
