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Challenges of the Registration and Enforcement of Mainland Judgments in Hong Kong

China Minsheng Trust Co., Ltd V. Fu Kwan [2025] HKCA 462

Introduction

There are two different regimes under the current legal framework of Hong Kong governing the registration of Mainland judgments in Hong Kong for enforcement. In general, if the relevant Mainland judgment is made before 29 January 2024, an application for its registration in Hong Kong is to be made pursuant to the Mainland Judgments (Reciprocal Enforcement) Ordinance (Cap. 597) (the "Old Regime"). If the relevant Mainland judgment is made on or after 29 January 2024, an application for its registration in Hong Kong shall be made pursuant to the Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance (Cap. 645) (the "New Regime") (except for certain "excluded judgments").

Despite the implementation of the New Regime, certain Mainland judgments may still need to be registered under the Old Regime. For the purpose of enforcement, a registered Mainland judgment has the same force and effect as if it had been a judgment originally given in the courts of Hong Kong. Upon registration, the judgment creditor may enforce the Mainland judgment in Hong Kong.

Not all Mainland judgments are registrable in Hong Kong under the Old/New Regime. Under the Old Regime, a registrable Mainland judgment must be given in civil or commercial matters and must meet at least the following requirements: (a) the judgment is given by a designated Mainland court; (b) there exists a valid "choice of Mainland court" agreement; (c) the judgment is final and conclusive as between the parties to the judgment; (d) the judgment is enforceable in the Mainland; and (e) the judgment orders the payment of a sum of money (not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty).

Although the implementation of the Old/New Regime provides a legal framework for cross-border judgment enforcement, the recent case of China Minsheng Trust Co., Ltd V Fu Kwan [2025] HKCA 462 highlights the limitations of the Old Regime. Due to the unique characteristics of the Chinese legal system and Hong Kong legal system, certain types of Mainland judgments may not be registrable in Hong Kong under the Old Regime.

Background

In 2019, China Minsheng Trust Co., Ltd. (the "Plaintiff") lent four sums of money to Xinhualian Holdings Co., Ltd. (the "Borrower") pursuant to four loan agreements (the “Loan Agreements"), and Mr. Fu Kwan (the "Defendant") entered into four guarantee agreements (the "Guarantee Agreements"), each relating to one of the Loan Agreements, whereby the Defendant agreed to guarantee the loans granted to the Borrower under the Loan Agreements.

Pursuant to the Loan Agreements and the Guarantee Agreements, the Plaintiff, the Borrower and the Defendant each confirmed to apply to the Beijing Chang'an Notary Office for notarization of the enforcement of the contract. If the Defendant fails to perform its obligations under the contract, the Plaintiff may directly apply to the People's Court with jurisdiction for enforcement without going through litigation procedures, and the Defendant would waive his right to defend against the Plaintiff’s direct application for enforcement.

The Borrower failed to repay the loan on time. The Plaintiff applied to the Beijing Chang'an Notary Office for, and obtained, "certificates for execution" pursuant to the Loan Agreements and the Guarantee Agreements, and then applied to the Mainland court for enforcement of the Loan Agreements and the Guarantee Agreements.

On 1 December 2020, the Beijing No. 3 Intermediate People's Court (the "Beijing Court") issued a ruling (the "Mainland Judgment") confirming that the persons subject to enforcement had no property available for enforcement. Further, the persons subject to enforcement had the obligation to continue to fulfil the debt obligation to the Plaintiff for enforcement.

The Plaintiff then applied to the Court of First Instance of the High Court of Hong Kong (the "CFI") to register the Mainland Judgment for enforcement in Hong Kong. After the registration of the Mainland Judgment was granted by the CFI, the Defendant applied to the CFI to set aside the registration.

The Ruling issued by the CFI

On 29 February 2024, the CFI set aside the registration of the Mainland Judgment on the ground that the ruling that "the persons subject to enforcement were obliged to continue to fulfil the debt obligation to the applicant for enforcement" as provided in the Mainland Judgment only described the Defendant’s payment obligation owed to the Plaintiff, but did not have the effect of "requiring" the Defendant to pay a sum of money. The CFI held, among others, that although the Mainland Judgment described the Defendant's payment obligation, it did not satisfy Section 5(2)(e) of the Old Regime, that is, the judgment must "order the payment of a sum of money".

The Appeal

The Plaintiff filed an appeal against the CFI's decision. On 21 May 2025, the Court of Appeal of the High Court of Hong Kong (the "Court of Appeal") dismissed the appeal.

The Court of Appeal agreed with the CFI's finding that the Mainland Judgment did not satisfy Section 5(2)(e) of the Old Regime. As far as the Mainland Judgment was concerned, the debt in question was adjudicated by the Beijing Chang'an Notary Office based on the relevant notarized debt instrument. The ruling issued by the Beijing Court concerned the enforcement procedure of the debt provided in the relevant notarized debt instrument, but the court did not make a ruling on the amount of the underlying debt itself. The ruling that "the persons subject to enforcement were obliged to continue to fulfil the debt obligation to the applicant for enforcement" as provided in the Mainland Judgment was merely descriptive in nature, not a direct order for such persons subject to enforcement to pay a sum of money. Therefore, the Mainland Judgment did not satisfy Section 5(2)(e) of the Old Regime that the judgment must "order the payment of a sum of money". Accordingly, it did not meet the definition of a registrable Mainland judgment in Hong Kong under the Old Regime and was not registrable.

Legal Implications

The Court of Appeal's ruling reflects that under the Old Regime, a Mainland court's ruling that merely confirms a debt obligation may not be able to satisfy the registration requirements in Hong Kong. Meanwhile, the Court of Appeal's ruling also reminds creditors of the limitations of cross-border enforcement procedures. Even if creditors have obtained a favourable enforcement ruling in Mainland China, they will still need to comply with the relevant requirements of the laws of Hong Kong to be able to register and enforce the Mainland judgment in Hong Kong (Mainland judgments not registrable in Hong Kong under the Old/New Regime may still be enforced at common law, but the process will take longer).

It should also be noted that, in general, more types of Mainland judgments are registrable in Hong Kong under the New Regime (which covers a wider range of registrable Mainland judgments).

For example, with regard to Mainland judgments given in a civil or commercial matter, Mainland judgments "given in proceedings that are civil or commercial in nature under the law of the Mainland" (except for certain types of judgments) would have preliminarily met the registration requirements under the New Regime. It was not expressly provided that Mainland judgments must "order the payment of a sum of money" in order to be registrable in Hong Kong.

However, it remains to be seen whether a ruling issued by a Mainland court on the enforcement procedure of a debt (pursuant to the previous ruling issued by a Mainland notary office of the debt based on the relevant notarized debt instrument) would be registrable in Hong Kong under the New Regime.

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