Enforcing Mainland Court Judgements in Hong Kong – Q&A
General Questions on Enforcement of Mainland Court Judgments in Hong Kong
1. Can a valid judgement issued by a Mainland court be applied for enforcement in Hong Kong?
Most of the effective judgements in civil and commercial matters issued by Mainland courts can be applied for enforcement in Hong Kong. Judgements in criminal cases and administrative cases in the Mainland cannot be applied for enforcement in Hong Kong, but judgements in civil proceedings ancillary to criminal cases can be applied for enforcement in Hong Kong.
2. How can a judgement of a Mainland court in civil or commercial matters be applied for enforcement in Hong Kong?
The first way is to apply for enforcement of Mainland civil and commercial judgements and family judgements in Hong Kong courts in accordance with the Agreement on Reciprocal Enforcement of Judgements in Civil and Commercial Matters signed between the Mainland and Hong Kong. The second way is to apply for the recognition and enforcement of Mainland civil and commercial judgments by way of an enforcement action brought in a Hong Kong court, in accordance with the general principle of recognition of foreign (foreign) court judgments under the common law of Hong Kong, by way of an enforcement action of a foreign judgment.
3. How can the applicant advance the actual enforcement of the Mainland judgement after it has been registered or recognized by the Hong Kong court by way of agreement or litigation?
The applicant can advance the enforcement in one or more of the following ways: (1) Appointing a lawyer to make necessary enquiries into the defendant’s assets, such as properties, whether he/she is a director of a company; (2) Filing an application for a Writ of Summons to the court to require the executor to appear before the court to account for his/her financial position and to provide financial documents at the specified time and place. If the respondent fails to comply with the court’s order, the respondent may further apply to the court for imprisonment of the executor; (3) After finding out the information of the assets to be executed, apply to the court for a Writ of Execution according to the type of assets and in accordance with the nature of the case, e.g., garnishee attachment order for a bank account, warrant of distress, charging order for a property, order for auction, etc. Through these Writs of Execution, the assets of the executor can be used to pay off the debts; (4) If the executor is a Hong Kong resident, consideration can also be given to applying for bankruptcy of the executor.
Enforcement of Mainland Judgments in Hong Kong through Bilateral Agreements between the Mainland and Hong Kong
4. What are the bilateral agreements in force between the Mainland and Hong Kong for the reciprocal enforcement of each other’s judgements in civil and commercial matters？
There are mainly three bilateral agreements on mutual enforcement of each other’s judgements in civil and commercial matters:
- Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matter by Courts of the Mainland and of the Hong Kong Special Administrative Region pursuant to Choice of Court Agreements between Parties Concerned, which entered into force on 1 August 2008.
- 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, which entered into force on 29 January 2024.
- Arrangement on Reciprocal Recognition and Enforcement of Civil Judgments in Matrimonial and Family cases by the Courts of the Mainland and of the Hong Kong Special Administrative Region, which came into effect on 15 February 2022.
Of these, the first two are on mutual recognition and enforcement of judgments in civil and commercial matters other than those in matrimonial family cases, and the third one is on mutual recognition and enforcement of judgments in matrimonial family cases.
5. Is there any overlap in the scope of application of the above three bilateral agreements on mutual recognition and enforcement of each other’s judgements in civil and commercial matters? In other words, is it possible to apply for the enforcement of Mainland court judgements in Hong Kong under two or more bilateral agreements at the same time?
There is no overlap. The Arrangement on Reciprocal Recognition and Enforcement of Civil Judgments in Matrimonial and Family cases by the Courts of the Mainland and of the Hong Kong Special Administrative Region, which came into effect on 15 February 2022, deals with the reciprocal recognition and enforcement of judgments in matrimonial family cases. The Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matter by Courts of the Mainland and of the Hong Kong Special Administrative Region pursuant to Choice of Court Agreements between Parties Concerned, which came into effect on 1 August 2008, deals with cases in respect of which the judgments were given in force prior to 15 February 2024 and which are subject to the agreement of both parties to the contract on the exclusive jurisdiction of the court. 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, which came into effect on 29 January 2024, deals with civil and commercial judgments rendered after 29 January 2024 when the judgments are in force.
6. What are the elements of a mutually recognizable and enforceable judgement?
They include monetary and non-monetary judgements. Where the judgement includes punitive damages, the punitive damages component will generally not be recognized and enforced, except in special circumstances as provided for in the bilateral agreements.
7. If an application is made in Hong Kong for the enforcement of a Mainland civil or commercial judgement under the three bilateral agreements, will the Hong Kong courts directly apply the provisions of the bilateral agreements to hear the case and make a decision?
No. Hong Kong has already transposed the contents of the three bilateral agreements through local legislation. When dealing with applications for recognition and enforcement of Mainland court judgments, Hong Kong courts directly apply Hong Kong’s domestic legislation, not the bilateral agreements. The contents of the bilateral agreements are only used as legislative background information for reference purposes. The three bilateral agreements corresponding to the domestic legislation of Hong Kong are:
- Cap. 597 – Mainland Judgments (Reciprocal Enforcement) Ordinance
- Cap. 645A – Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Rules
- Cap. 639 – Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance
8. Is there a statute of limitations for applying for recognition and enforcement of mainland judgements to be enforced in Hong Kong through a bilateral agreement between the mainland and Hong Kong?
The period within which an applicant may apply for recognition and enforcement is two years from the date of entry into force of the judgement.
9. Which court in Hong Kong has jurisdiction over the enforcement of Mainland judgments in Hong Kong through bilateral agreements between the Mainland and Hong Kong?
Applications are made to the Court of First Instance of the High Court of Hong Kong.
10. What is the procedure for applying for enforcement of Mainland judgements in Hong Kong through bilateral agreements signed between the Mainland and Hong Kong?
An application for recognition and enforcement, a copy of the judgement stamped by the court that made the final judgement, a certificate issued by the court that made the final judgement, proof of identity and other documents are submitted to the court. The court examines the application and issues a ruling or order.
After the court makes an order for approval, the applicant must serve the respondent with a Notice of Registration of the court’s approval of the recognition and enforcement of the judgement. A respondent on whom a Notice of Registration has been served may, within 14 days of the service of the Notice of Registration or such other period as the Court may specify, apply to the Court for the registration of the judgement to be cancelled. If the respondent makes an application to set aside the registration of the judgement, the case is converted into an adversarial proceeding between the parties, and the Court will hold a hearing in accordance with the procedure and make an order whether to uphold or set aside the registration of the judgement.
11. How long does it take to enforce Mainland judgements in Hong Kong through bilateral agreements signed between the Mainland and Hong Kong?
Generally, it takes three to six months for a Hong Kong court to process an application for registration of a Mainland judgement.
12. How much lawyer’s fees are required for the enforcement of Mainland judgments in Hong Kong through bilateral agreements entered into between the Mainland and Hong Kong?
The legal fees for obtaining a court order granting leave to register a Mainland judgement are generally about HK$50,000 through the ex parte application process. If thereafter an application is made by the respondent party to set aside the registration of the judgement delivered, which evolves into litigation, it is difficult to predict in advance as both parties are required to litigate at a higher level of legal costs.
Issues relating to the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matter by Courts of the Mainland and of the Hong Kong Special Administrative Region pursuant to Choice of Court Agreements between Parties Concerned, which came into effect on 1 August 2008
13. According to the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matter by Courts of the Mainland and of the Hong Kong Special Administrative Region pursuant to Choice of Court Agreements between Parties Concerned of 1 August 2008, to which judgements of Mainland cases are the enforcement of Mainland judgements in Hong Kong applicable?
It applies to ‘final judgements with enforcement effect’. This includes judgements of the Supreme People’s Court; judgements of first instance, judgements of second instance and judgements of entry into force after arraignment by a People’s Court of a higher level in accordance with the trial supervision procedures where the Higher People’s Court, the Intermediate People’s Court and the Basic People’s Courts authorized to have jurisdiction over civil and commercial cases of the first instance relating to foreign affairs, Hong Kong, Macao and Taiwan have legally disallowed appeals, or where no appeal has been lodged beyond the statutory time limit. The term ‘judgement’ includes judgements, rulings, mediation documents and payment orders.
Issues relating to the Arrangement on Reciprocal Recognition and Enforcement of Civil Judgments in Matrimonial and Family cases by the Courts of the Mainland and of the Hong Kong Special Administrative Region, which came into effect on 15 February 2022
14. According to the Arrangement on Reciprocal Recognition and Enforcement of Civil Judgments in Matrimonial and Family cases by the Courts of the Mainland and of the Hong Kong Special Administrative Region, which came into effect on 15 February 2022, what are the valid judgments in Mainland cases that are applicable to the enforcement of Mainland judgments in Hong Kong?
It applies to judgements in matrimonial and family cases that are in force in the Mainland courts. ‘Judgement’ includes judgement, ruling and mediation document. A ‘judgement in force’ refers to a judgement of second instance, a judgement of first instance against which no appeal is allowed by law or against which no appeal has been lodged beyond the statutory time limit, and a judgement handed down in accordance with the trial supervision procedures.
Issues relating to 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, which entered into force on 29 January 2024
15. According to 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, which types of judgements in force in Mainland cases are applicable to the enforcement of Mainland judgements in Hong Kong?
The types of whether or not valid judgements applicable include judgements, rulings, conciliations or orders for payment made by Mainland courts in civil or commercial matters, excluding preservation rulings. Effective judgements include judgements of second instance, judgements of first instance where no appeal is allowed according to law or where no appeal has been lodged after the statutory deadline, and the above judgements made in accordance with the trial supervision procedures.
16. According to 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 which came into effect on 29 January 2024, in which cases is the enforcement of Mainland judgments in Hong Kong not applicable?
For the time being, it does not apply to the following judgements:
- Alimony, sibling support, dissolution of adoption, adult guardianship, liability for damages after divorce, and separation of estates in cohabitation relationship cases heard by the Mainland People’s Courts.
- Cases of inheritance, administration or distribution of estates.
- Cases relating to infringement of invention patents and utility model patents heard by the People’s Courts of the Mainland, cases relating to confirmation of the fee rates for the grant of standard essential patents heard by the courts of the Mainland and the Hong Kong Special Administrative Region, as well as cases relating to intellectual property rights as provided for in the relevant laws.
- Marine environmental pollution, limitation of liability for maritime claims, common sea loss, emergency towage and relief, maritime liens, and maritime passenger transport cases.
- Bankruptcy (winding-up) cases.
- Cases of determining voter eligibility, declaring a natural person missing or dead, or determining a natural person’s limited or incapacitated civil capacity.
- Confirming the validity of arbitration agreements and setting aside arbitral awards.
- Cases of recognition and enforcement of judgements and arbitral awards of other countries and regions.
To apply for the recognition and enforcement of Mainland court judgements in Hong Kong courts by way of civil proceedings under common law principles: FAQs
17. Under what circumstances is it appropriate to apply to the court for the recognition and enforcement of a Mainland court judgement by way of litigation in accordance with common law principles?
If a Mainland court judgement does not satisfy the conditions for enforcement in Hong Kong through a bilateral enforcement agreement and cannot be enforced in Hong Kong in accordance with the above MLA, an application for enforcement of the Mainland judgement can be made by way of litigation in a Hong Kong court in accordance with the common law principles, and the Hong Kong court will take the Mainland court judgement as the cause of action, i.e. the court will no longer hear the substantive disputes in respect of the Mainland judgement, but will rely on the Mainland judgement itself as the basis for litigation and judgement. as the basis of the action and judgement.
18. How long is the statute of limitations for bringing an action for enforcement of a Mainland court judgement in a Hong Kong court through common law principles?
Under section 4 of the Limitation Ordinance (Cap. 347), the limitation period for actions relating to the enforcement of court judgments is 12 years.
19. Which level of court in Hong Kong has jurisdiction over actions for the enforcement of Mainland court judgements brought in Hong Kong courts through common law principles?
Depending on the amount of money involved in the case, actions for enforcement of Mainland court judgements can be brought and transferred to either the District Court of Hong Kong or the High Court of Hong Kong. The general limit on the amount of money that can be dealt with by the District Court is HK$5 million (with exceptions).
20. What are the procedures for bringing an action for the enforcement of a Mainland court judgement in a Hong Kong court through common law principles?
Proceedings for the enforcement of Mainland court judgments in Hong Kong courts through common law principles will follow the normal civil litigation process, which includes (1) issue of a writ of summons; (2) service of a writ of summons; (3) application for default judgment (if the defendant does not plead); (3) pleadings (statement of claim, statement of defence, statement of reply); (4) time summons questionnaire and case management summons; (5) exchange of documentary evidence (6) exchange of witness statements and Mainland legal expert evidence; (6) case management conference/pre-trial review; (7) trial. For detailed steps of civil proceedings in Hong Kong, please refer to the article ‘Civil Proceedings in Hong Kong: An Overview’.
21. What are the legal requirements for a judgement to be recognized and enforced by a Hong Kong court when the enforcement of a Mainland court judgement is brought in a Hong Kong court under common law principles?
The legal requirements for the recognition and enforcement of foreign (including Mainland) judgements in Hong Kong under common law principles are that the foreign judgement must be final and conclusive, and that the contents of the judgement are not contrary to the public policy of Hong Kong. For details of the final and conclusive issues encountered when applying for enforcement of Mainland court judgements in Hong Kong, please refer to the article “Enforcement of Mainland judgements in Hong Kong: the legal issues of ‘finality’ and ‘finality’ of judgements”.
22. What are the legal costs of enforcing a Mainland court judgement in a Hong Kong court through common law principles?
If the defendant does not contest the application and applies for a default judgment, the fee is relatively small, generally around HK$30,000 per application. If the Defendant defends and follows the general course of civil litigation to the end, both parties will usually need to spend more on legal fees, usually several hundred thousand Hong Kong dollars or more, which is difficult to accurately predict in advance. In addition, in accordance with the general principles of civil litigation, when the court makes a judgement, it will usually rule that the unsuccessful party has to bear the legal costs of the successful party. For more information on solicitor’s fees in Hong Kong civil litigation, please refer to the article ‘Legal Costs in Hong Kong Litigation’.
Bob Yan, principal solicitor of Yan Lawyers. Email: [email protected], Tel: +852 31881995, +86 15018939249, WhatsApp: +852 5103 9249
Natalie, paralegal