The Hong Kong office of Herbert Smith is frequently asked to advise on the enforceability of foreign judgments in the Hong Kong Courts. Parties commonly seek to enforce judgments obtained from Courts in the People’s Republic of China ("PRC") against defendants in Hong Kong. Many cases involve situations where the proceedings overseas were not contested by the defendants, but they now wish to argue that such judgments should not be enforced in Hong Kong.
There are two mechanisms by which a judgment of a foreign Court can be enforced in Hong Kong:
Under the provisions of the Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap.319); or
at common law.
Under the provision of the FJ (RE) Ordinance, the plaintiff must apply for an ex parte order that the judgment be registered. Once registered, the judgment has all the features of a Hong Kong judgment and can be enforced by the usual methods of executing judgments in Hong Kong. However, the Ordinance only applies to superior Court judgments from certain countries, including Australia, Belgium, France, Germany, India, Israel, Italy, New Zealand and Singapore.
Judgments from courts in other countries (commonly the PRC, United Kingdom and the U.S.A.) cannot be registered under the FJ (RE) Ordinance.
Under common law rules, the plaintiff must issue proceedings in Hong Kong in the normal way, citing the foreign judgment debt as the cause of action. The original cause of action becomes irrelevant. The plaintiff will usually apply for summary judgment (arguing that the defendant has no defence). Once summary judgment has been obtained, the plaintiff will have a valid Hong Kong judgment which can be enforced using the ordinary methods of execution.
However, certain preconditions will apply before summary judgment is granted in such cases:
the foreign judgment on which the application is based must be "final and conclusive";
the foreign Court must have had jurisdiction to make the order which the plaintiff is seeking to enforce in Hong Kong;
the defendant must be unable to establish a ground on which the judgment should not be enforced (e.g. breach of natural justice, contrary to the public policy of Hong Kong, expiration of limitation periods etc.)
In Tan Tay Cuan v. Ng Chi Hung (HCA 5477/2000, 5 February 2001), the plaintiff sought to enforce in Hong Kong a judgment from the Higher People’s Court of the Fujian province of the PRC. The defendant argued that the judgment was not "final and conclusive" because, pursuant to the PRC law, there was a two-year period in which the judgment was capable of being "corrected" on "retrial or review". Even though no retrial or review had been ordered, the Court of First Instance in Hong Kong was not prepared to grant summary judgment. In circumstances where an application for retrial or review could still be made, the judgment from the Higher People’s Court could not be considered as being "final and conclusive".
In Korea Data Systems Ltd and Another v. Jay Tien Chiang & Another (HCA 9265/2000, 17 July 2001), the plaintiff sought to enforce a judgment obtained from the Superior Court of the State of California for the County of Orange. There were two defendants. The first defendant had not appeared at the trial in California and judgment was entered in his absence. He argued that the Californian judgment had been obtained contrary to natural justice. The second defendant had appeared at the trial in California, but claimed that he had been prejudiced by the non-attendance of the first defendant. He therefore also argued that the Californian judgment had been obtained in breach of natural justice. Both defendants argued that the plaintiff’s evidence did not sufficiently prove that the Californian judgment was final or conclusive.
The plaintiff’s Californian attorney filed an affidavit setting out in clear terms why the defendants were deemed to have submitted to the Californian jurisdiction and setting out the procedures of which both defendants could have availed themselves. He therefore concluded in his affidavit that the Californian judgment was "final, conclusive, valid and binding" on the defendants. The defendants argued that his evidence was merely an assertion, and was not supported by an appropriate legal analysis.
In considering this point, the Court had to determine whether the plaintiff’s evidence on foreign law had been proved as a fact. The plaintiff’s affidavit had not set out in full the legal bases relied upon, nor the reasoning as to their effect. However, the Court held that the failure to do this was not fatal. Further, in circumstances where the challenge to such evidence was made, it was incumbent on the defendants to do more than make a bare assertion that the judgment was not final and conclusive. The challenge to the evidence was not supported by a prima facie contrary case. Summary judgment was granted to the plaintiff.
In view of the issues raised in the Korea Data Systems case, parties wishing to enforce foreign judgments in Hong Kong should prepare detailed affidavits, with exhibits as necessary, to prove that the judgment is "final and conclusive" in the country in which it was obtained.
"© Herbert Smith 2002
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