CHINA MINSHENG TRUST CO., LTD v. FU KWAN

CACV 118, 119, 120 & 121/2024, [2025] HKCA 462 On Appeal From [2024] HKCFI 590 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 118, 119, 120 & 121 OF 2024 (ON APPEAL FROM HCMP NO. 1943, 1944, 1945 & 1946 OF 2022) ____________ IN THE MATTER OF the Mainland Judgments (Reciprocal Enforcement) Ordinance (Cap. 597) and IN THE MATTER OF Rulings dated 1 December 2020 of 北京市第三中级人民法院under (2020)京 03 执恢46 号之二，(2020) 京03 执恢47 号之二，(2020) 京03 执恢50 号之二and (2020) 京03 执恢 56 号之二 ____________ BETWEEN 中国民生信托有限公司 Plaintiff (CHINA MINSHENG TRUST CO., LTD) and 傅军 (FU KWAN) Defendant ____________ Before: Hon Chu VP, Au and G Lam JJA in Court Date of Hearing: 14 March 2025 Date of Judgment: 21 May 2025 _________________ J U D G M E N T _________________ Hon G Lam JA (giving the Judgment of the Court): A. Introduction These are 4 appeals brought by the plaintiff from the orders of Deputy High Court Judge H Au-Yeung made on 29 February 2024 in 4 sets of proceedings to set aside the registration of 4 rulings all given by a court in Beijing. The parties to and the material facts of the 4 cases are the same and they have therefore been dealt with together both before the judge and in this court. The judge’s reasons for setting aside the registration of the rulings were set out in his decision dated 29 February 2024 (“Decision”). There are 3 questions raised in these appeals, all connected with the requirements of the Mainland Judgments (Reciprocal Enforcement) Ordinance (Cap 597) (“MJREO”): (1) whether the rulings are judgments that order the payment of a sum of money; (2) whether the rulings are judgments given by a “chosen court” and in particular whether there was any “choice of Mainland court agreement”; and (3) whether the defendant was “not summoned to appear” in the Beijing court “according to the law of the Mainland”. B. The facts Pursuant to 4 loan agreements entered into on 4 April 2019 (“Loan Agreements”), the plaintiff, China Minsheng Trust Co., Ltd (“Minsheng”), lent 4 sums of money, namely RMB 110 million, RMB 120 million, RMB 110 million and RMB 100 million respectively, to the borrower Xinhualian Holdings Co Ltd (新華聯控股有限公司) (“Borrower”). On the same day, Minsheng and the defendant herein, Mr Fu Kwan (“Fu”), entered into 4 guarantee agreements (“Guarantee Agreements”), each relating to one of the Loan Agreements, whereby Fu agreed to guarantee the loans granted to the Borrower under the Loan Agreements. The Loan Agreements and Guarantee Agreements each contain a provision (in the latter, found in clause 8.2) that: “ Disputes arising from or related to this contract shall first be resolved through negotiation or mediation, failing which, the parties shall bring the case before a people’s court with jurisdiction at the creditor’s domicile at the time of filing.” Each of those agreements also contains provisions that allow Minsheng to take steps pursuant to Art. 238 of the Civil Procedure Law of the PRC to apply for direct enforcement of the borrower’s or the guarantor’s obligations, as the case may be, without going through litigation. In the Guarantee Agreements, this is found in clause 12, which has the title “Enforceable Notarisation” (强制執行公證) and reads as follows: “ 12.1 The creditor and the guarantor jointly confirm that within 3 working days from the date of this contract, both parties will apply to Beijing Chang’an Notary Public Office voluntarily for notarization of the enforcement of this contract. 12.2 The guarantor undertakes that if the guarantor fails to perform or fully perform its obligations under this contract, it will voluntarily accept their enforcement by judicial authorities without the need to go through litigation procedures. The creditor may directly apply to the People’s Court with jurisdiction for enforcement in accordance with Article 238 of the Civil Procedure Law without the need to go through litigation procedures, and the guarantor waives his right to defend against the creditor’s direct application for enforcement. 12.3 Both parties jointly confirm that they have a complete and clear understanding of the provisions of the relevant laws, regulations and regulatory documents regarding the meaning, contents, procedures and effects of the notarization of enforcement. ……” Art. 238 of the Civil Procedure Law (民事訴訟法) (2017 revision), referred to in clause 12.2 quoted above, read as follows: “ Where a party fails to perform its obligations pursuant to an instrument that has been lawfully rendered enforceable by a notary public, the other party may apply to the People’s Court with jurisdiction for execution. The People’s Court to which the application is made shall execute [the instrument]. …” Pursuant to clause 12.1 of the Guarantee Agreements and the equivalent provision in the Loan Agreements, on 8 April 2019 the parties obtained notarial certificates (公證書) from the Beijing Chang’an Notary Public Office (“Beijing Notary Office”) in relation to the effect of the contracts for the purpose of enforcement (强制執行效力) (“Notarisation Certificates”). These certificates stated that under the relevant provisions of the contract, the intention is clearly expressed that if Party B (i.e. the borrower or the guarantor, as the case may be) fails to perform or fully perform his obligations under the contract, then he voluntarily accepts its enforcement by a court that possesses jurisdiction without going through litigation procedures. The certificates also stated that the contract in question has effect for enforcement (具有强制執行效力), and that if Party B fails to perform or fully perform his obligations under the contract, then Party A may, within the time prescribed by law and with the Notarisation Certificate and relevant evidential materials, apply to the Beijing Notary Office for a certificate for execution and apply to a People’s Court that possesses jurisdiction for enforcement. The loans were originally for a period of 12 months. The Borrower paid certain interest but due to the occurrence of an event of default, Minsheng gave notice on 26 December 2019 declaring that the loans had become repayable in their entirety together with accrued interest. When the Borrower and Fu failed to repay, Minsheng took steps for direct enforcement pursuant to Art. 238 of the Civil Procedure Law. On 6 January 2020 Minsheng applied for, and on 13 January obtained, certificates for execution (執行證書) (“Execution Certificates”) from the Beijing Notary Office. These certificates: stated the facts found after investigation (經審查), including that the Loan Agreements and Guarantee Agreements were entered into; the Notarisation Certificates were issued; that the borrower had paid interest in sums totalling over RMB 9.9 million; that a breach of the Loan Agreements had occurred as a result of the Borrower assuming liability for the debts owed by a subsidiary to a third party; that under clause 11.2 of the Loan Agreements Minsheng was entitled to declare the loan to be immediately repayable; that Minsheng had on 26 December 2019 given notice to the Borrower and Fu that the loans had to be repaid in full by 31 December 2019; and that the Borrower and Fu had failed to make any repayment up to 6 January 2020; stated that letters had been issued to the Borrower and Fu on 6 January 2020 to verify the state of performance of their debt obligations but no response had been obtained from them; stated that based on the Execution Certificates, Minsheng may apply to the appropriate People’s Court that has jurisdiction for enforcement against the Borrower and Fu; and specified the “objects” of enforcement (執行標的) in 6 items, namely: 1. the principal; 2. the total amount of unpaid contractual interest accrued up to 26 December 2019; 3. that penalty interest at 18% per annum is payable from 27 December 2019 until payment; 4. that a sum for breach of contract (違約金) is payable in the amount of 5% of the principal; 5. that Fu has unlimited joint guarantee liability (無限連帶保證責任); and 6. a specified sum representing the fees and expenses incurred by Minsheng in enforcing its rights. Armed with these Execution Certificates, Minsheng sought enforcement in the Beijing No. 3 Intermediate People’s Court (“Beijing Court”). On 14 January 2020, the Beijing Court issued a Notice of Execution (執行通知書) (“Execution Notice”) to the Borrower and Fu, informing them that Minsheng had applied for enforcement and commanding that they perform the obligations confirmed by the specified legal documents (i.e. the Notarisation Certificates and the Execution Certificates) and to bear the interest arising during the period of delayed performance and enforcement fees and expenses. It was stated that in the absence of timely performance, the Beijing Court would carry out enforcement. On 15 January 2020, the Beijing Court issued an execution ruling (執行裁定書) which ordered, inter alia, that certain bank deposits of the Borrower and Fu be frozen. A compromise was soon reached and on 20 January 2020, on Minsheng’s application, the Beijing Court terminated the enforcement procedures. On 12 March 2020, however, the Beijing Court resumed the enforcement procedures on Minsheng’s application on the ground that the Borrower and Fu had not performed the settlement agreement. Another Execution Notice dated 14 March 2020 was issued to the Borrower and Fu with contents similar to the one dated 14 January 2020. In the course of the enforcement procedures, further orders were made by the Beijing Court for impounding the assets of the Borrower and Fu. Eventually, on 1 December 2020, the Beijing Court issued a ruling (執行裁定書) in each of the 4 cases (“Rulings”) terminating the enforcement procedures. The Rulings are materially identical in wording and differ only in the reference numbers and monetary amounts. Taking the one relating to one of the RMB 110 million loans as an example, it reads as follows: “ … The notarial certificates (2019) Jing Chang An Nei Jing Zheng Zi Nos. 14558 and 14568 and the execution certificate (2020) Jing Chang An Zhi Zi No. 13 issued by Beijing Chang’an Notary Public Office have taken legal effect. Based on them, China Minsheng Trust Co Ltd applied for enforcement. On 14 January 2020, this Court registered the case for enforcement. On 20 January 2020, China Minsheng Trust Co Ltd applied to terminate the enforcement on the ground that the enforcement settlement reached by the parties required long-term performance. This Court ruled on the same day that the enforcement be terminated. On 10 March 2020, China Minsheng Trust Co Ltd applied to resume enforcement on the ground that the persons subject to enforcement had not fulfilled the settlement agreement. On 12 March, this Court registered the case for enforcement. The amount specified in the application for enforcement was 115,998,972.6 yuan and interest. … After investigation, there was no money deposited in the bank account in the name of the persons subject to enforcement, no information relating to real estate and motor vehicle registration, and no external investment available for enforcement. … The applicant for enforcement acknowledged the results of the Court’s investigation and agreed with the termination of the present enforcement proceedings. In light of this, in accordance with Article 257(6) of the Civil Procedure Law of the People’s Republic of China and Article 519 of the Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China, this Court adjudicates as follows: The present enforcement proceedings relating to notarial certificates (2019) Jing Chang An Nei Jing Zheng Zi Nos. 14558 and 14568 issued by Beijing Chang’an Notary Public Office be terminated. After termination of the present enforcement proceedings, the applicant for enforcement has the right to request the persons subject to enforcement to continue to fulfil the debt obligation and to apply to the People’s Court for resumption of enforcement in accordance with the law. The persons subject to enforcement have the obligation to continue to fulfil the debt obligation to the applicant for enforcement.” (emphasis added) It is in particular the final sentence in the quoted passage above on which Minsheng has pinned its case for registration of the Rulings in Hong Kong. C. The registration proceedings in Hong Kong By 4 ex parte originating summonses issued on 25 November 2022, Minsheng applied to have each of the Rulings registered as a judgment in Hong Kong against Fu pursuant to the MJREO. After raising certain requisitions, which were answered by Minsheng, Master Hui granted the orders for registration on 7 March 2023. On 31 March 2023, Fu applied to have the registration set aside. He put forward 6 grounds but only 3 of them are relevant in these appeals, namely: the Rulings are not Mainland judgments that satisfy section 5(2)(a) of the MJREO in that they were not given by a “chosen court”, as there was no “choice of Mainland court agreement” within the meaning of section 3(2) insofar as the Rulings are concerned (the “No Chosen Court Ground”); the Rulings are not Mainland judgments that satisfy the requirement in section 5(2)(e) in that they do not order the payment of a sum of money (the “No Payment Order Ground”); and the defendant did not appear in the Beijing Court to defend the proceedings and was not summoned to appear according to the law of the Mainland as there were no court proceedings in the Mainland for the defendant to appear in (the “Not Summoned to Appear Ground”), and that the registration of the Rulings should therefore be set aside under section 18(1)(f)(i). In his Decision, the judge upheld the No Payment Order Ground but rejected all the other grounds relied on by Fu below, and ordered that the registration of the Rulings be set aside. On these appeals, Minsheng challenges the judge’s conclusion on the No Payment Order Ground. Fu opposes that challenge and further contends that the result below should be affirmed on the No Chosen Court Ground and the Not Summoned to Appear Ground as alternative or additional grounds. We shall discuss these 3 grounds in turn below. D. The No Payment Order Ground D1. The Decision of the judge In order to enforce a Mainland judgment by registration under the MJREO, the judgment creditor has to show that the 5 requirements set out in section 5(2)(a)-(e) are all satisfied. Section 5(2) provides: “ (2) On an application made under subsection (1), the Court of First Instance shall order the Mainland judgment to be registered in accordance with this Ordinance if the judgment creditor has proved to the satisfaction of the Court of First Instance that the following requirements are satisfied— (a) the judgment is given on or after the date of the commencement [i.e. 1 August 2008] of this Ordinance by— (i) a chosen court which is a designated court; (ii) a designated court upon a transfer of the case under the law of the Mainland from a chosen court; (iii) a designated court upon an appeal against a judgment of the case given by— (A) a chosen court; or (B) a court to which the case has been transferred under the law of the Mainland from a chosen court; or (iv) a designated court upon a retrial of the case which has been tried in— (A) a chosen court; or (B) a court to which the case has been transferred under the law of the Mainland from a chosen court; (b) the relevant choice of Mainland court agreement is made on or after the commencement date [i.e. 1 August 2008] of this Ordinance but before the commencement date [i.e. 29 January 2024] of the Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance (Cap. 645); (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).” Section 7 makes provision for the time limit for registration as follows: “ (1) The time limit for making an application for registration of a Mainland judgment under section 5(1) shall be 2 years. (2) The time limit specified under subsection (1) shall be calculated— (a) where a period for performance of the Mainland judgment has been specified in the judgment, from the last day of the period; or (b) in any other case, from the date from which the judgment takes effect.” Fu contended that the Rulings were not orders compelling him to make any payment to Minsheng and did not therefore satisfy the requirement in section 5(2)(e). Minsheng’s case was that the Rulings, in particular the final sentence highlighted as quoted in §14 above, constituted orders for the payment of sums of money due from Fu. In his Decision, the judge set out a summary of the Mainland law experts’ opinions on whether the Rulings have the effect of ordering the payment of a sum of money. Accepting Fu’s submissions, the judge held that on a plain reading of the Rulings, there was no demand of payment against Fu. The part of the Rulings containing the “adjudication” did no more than describe Fu’s continuing obligation to pay – an obligation pronounced by the Beijing Court in its Execution Notice dated 14 January 2020. The judge focused on the nature of the order rather than whether it is legally enforceable. In any event, the Rulings will come into play in future enforcement only because they record the outcome of the enforcement steps taken thus far and the amount outstanding and therefore provide the starting point for any resumed enforcement, not because they contain an order for payment. Minsheng’s argument would mean that every time the Mainland court issues a ruling, in a form like the Rulings, after enforcement steps have resulted in partial payment of an existing order, the time limit of 2 years for registration prescribed by section 7 would start running again, which cannot be right. Accordingly, the judge held that the registration of the Rulings should be set aside on the ground that section 5(2)(e) was not satisfied. D2. The parties’ arguments on appeal On this appeal, on behalf of Minsheng, Mr Bernard Man SC attacks the judge’s decision along the following lines: The final sentence of the Rulings was part of the “adjudication” (裁定) by the court, not a mere description referring to a pre-existing obligation. The final sentence made clear that there was to be no deduction from the original debt. It adjudicated on the outstanding amount and pronounced Fu’s obligation to pay it. The expert evidence shows that the amount to be recovered by enforcement (執行的金額) stated in the Rulings could be challenged by Fu by written objection to the Beijing Court. A Mainland judgment stating that a party has an obligation to pay (such as the final sentence of the Rulings) can and should be construed as an order directing the party to pay. The judge erred in holding that whether the Rulings are legally enforceable would not shed light on whether the final sentence amounts to an order for payment. An order which is legally enforceable forces a party to pay. Enforceability is therefore highly relevant. Since, as the judge accepted, the resumption of enforcement would be based on the Rulings, they are enforceable in that they provide the basis for future enforcement. There is nothing unreasonable for a plaintiff to wait until the result of enforcement in the Mainland and a ruling which adjudicates on the actual outstanding debts payable, before seeking enforcement in Hong Kong. If there are successive such rulings in the Mainland, it is not absurd that the time for registration should start to run on the date of the last ruling which crystallises the outstanding amount. The fact that there can be multiple rulings does not mean they are not each an order for payment. Opposing the appeal on behalf of Fu, Mr Douglas Lam SC submits: Section 5(2)(e) requires an “executory” or “coercive” order. In contrast, the Rulings did not use any imperative language but merely described the state of the indebtedness upon the termination of the enforcement procedures. It is the Execution Notice (issued on 14 January 2020) that pronounced that Fu should pay the debts to Minsheng. At most, the Rulings are akin to a declaratory judgment, which is not a coercive order. In terms of their nature and purpose, the Rulings were merely administrative pronouncements terminating the enforcement procedures and did not, in and of themselves, order any payment to be made. The word “continue” in the final sentence of the Rulings shows that it merely affirmed an existing obligation which stemmed contractually from the Guarantee Agreements and legally from the Execution Notice. Together with the sentence immediately preceding it, the final sentence simply described the continuing rights and obligations of Minsheng and Fu following the termination of the enforcement procedures. The Rulings provide the “basis” for resumed enforcement simply because they record the result of the enforcement thus far and the net outstanding amount. Minsheng’s construction would lead to the absurd result that a creditor could register a Mainland ruling given upon any partial execution, rendering the 2-year time limit for registration under section 7 otiose. There is no need for a creditor to wait for a Mainland enforcement ruling crystallising the outstanding amount. It is open to the creditor to register the original order within the 2-year period and, in so far as the judgment sum has been partially satisfied later by execution, to give credit in subsequent enforcement steps in Hong Kong. D3. The nature of the proceedings, orders and rulings in the Mainland Before delving into the contents and language of the Rulings, it is in our view necessary to step back and examine the relevant legal procedures undertaken in the Mainland in this case, so as to be able to understand in the proper context their nature and effect. As explained in the expert evidence, what had been instituted by Minsheng in the Mainland was the procedure for the direct enforcement of notarised instruments creating debt obligations (公證債權文書) (in short, “notarised debt instruments”). A pilot system for enforcing notarised debt instruments through the courts was introduced in the early 1980s, pursuant to the promulgation of the Interim Regulations on Notarisation (公證暫行條例) and other provisional laws and regulations at that time. The system has been retained and put on a more permanent basis with the enactment of subsequent laws including the Notarisation Law of the PRC (公證法). Under this system, the enforcement of notarised debt instruments consists essentially of three stages, which are reflected in the procedures adopted in the present case. If the parties wish to avail of this system and the instrument creating the primary obligations falls within a category that can be directly enforced in this way (such as guarantee contracts), the first stage is for the parties to specify in the instrument their agreement to submit to this system, and then procure the instrument to be notarised by a notary office. According to Art. 39 of the Rules of Notarisation Procedures (公證程序規則) issued by the Ministry of Justice, the notary office has the duty to examine and verify that (1) the content of the instrument is payment; (2) the creditor-debtor relationship is clear, and the creditor and the debtor have no doubts about the content in the instrument about payment; (3) the method, content and time limit of performance of the debt obligation are clear; (4) the instrument specifies that the debtor agrees to accept compulsory enforcement if he fails to perform his obligations or performs them improperly; (5) the creditor and the debtor are willing to accept the notary agency’s verification of the performance of the debt obligation; and (6) other conditions stipulated in the Notarization Law. In the present case, clause 12 of the Guarantee Agreements contains the parties’ agreement to submit to the system of direct enforcement of notarised debt instruments. As mentioned in §8 above, pursuant to clause 12(1), soon after entering into the Guarantee Agreements, Minsheng and Fu procured the Beijing Notary Office to notarise the instruments, and the Notarisation Certificates were issued accordingly. The second stage is that when the debtor fails to perform or perform completely his obligations under the notarised debt instrument, the creditor may apply to the same notary office for an execution certificate. Art. 55 of the Rules on Notarisation Procedures provides: “Where the debtor fails to perform or improperly performs a notarized document of creditor’s right having compulsory execution effect, the notary institution shall, after verifying the performance of the contract, issue a certificate of execution in accordance with the relevant requirements. For the circumstances involving compulsory execution, such as the debtor’s performance of the contract, verification by the notary institutions, new agreement reached by the parties on the creditor’s rights and debt, and so on, a working record should be prepared by the contracting notary public as an attachment. The certificate of execution shall state the applicant, the person subjected to the execution under application, the subject matter of the execution under application and the limitation period for making the application for execution. The portion which has already been performed by the debtor shall be excluded from the subject matter of the application for execution. The default penalty, late payment, interest, etc. resulted from the debtor’s failure to perform or improper performance may, at the creditor’s request, be included in the subject matter of the application for execution.” In particular, the notary office has to examine and verify substantively whether the creditor’s allegation about the debtor’s failure is correct in fact. In the present case, as mentioned in §10 above, upon Minsheng’s application, the Beijing Notary Office examined and verified the relevant facts and issued the Execution Certificates, identifying the precise sums for enforcement. The third stage is for the creditor to apply to a Mainland court for enforcement of the notarised debt instruments. Art. 238 of the Civil Procedure Law of the PRC (2017 revision), quoted in §7 above, makes general provision for the enforcement of debt instruments thus rendered directly enforceable by notarisation. In 2018, the Supreme People’s Court issued the “Regulations on Several Issues Concerning the Execution of Notarized Debt Instruments” (最高人民法院關於公證債權文書執行若干問題的規定) (“2018 Regulations”), laying down more detailed regulations on this enforcement system. The application is to be made to the People’s Court of the place where the debtor resides or where the assets to be enforced against are situated (see Art. 2 of the 2018 Regulations). According to Art. 5 of the 2018 Regulations, the court should refuse the enforcement application in the following circumstances: (i) where the debt instrument is an instrument that cannot be given compulsory execution effect by way of notarization; (ii) where the notarized debt instrument does not contain the debtor’s undertaking to accept compulsory execution; (iii) where the subject of the rights and obligations or the payment details contained in the notary certificate are not clear; (iv) where the creditor has not yet submitted a certificate of execution; (v) other circumstances which do not meet the requirements for acceptance. It appears that after the court has decided to accept the case, it will issue a notice of execution to the party to be enforced against, such as the Execution Notices issued by the Beijing Court in this case on 14 January and 14 March 2020 respectively. Under Art. 12 of the 2018 Regulations, the party facing enforcement may make an application that the notarised debt instrument should not be enforced on one of the following grounds, namely: (i) the person subject to enforcement was not present and did not appoint an agent to be present for the notarization; (ii) a person lacking capacity for civil conduct or a person with limited capacity for civil conduct had no guardian to handle the notarization on his behalf; (iii) the notary public has handled the notarization for himself or a close relative, or handled notarization in which he himself or a close relative has an interest; (iv) the notary public handling the notarization has committed acts of corruption, bribery and favouritism, which have been confirmed by valid criminal legal documents, etc; (v) other serious contravention of statutory notarization procedures. Such an application should be made to the enforcing court within 15 days of receipt of the execution notice: Art. 13. Where a party opposes enforcement on the ground, inter alia, that the civil rights and obligations contained in the notarized debt instrument are inconsistent with the facts or the notarised debt instrument is invalid or voidable under the law, he should institute litigation in the enforcing court, and the court after trial may decide to withhold enforcement in whole or in part or to dismiss the cause: see Arts. 22 and 23 of the 2018 Regulations. In the present case, as mentioned in §11 above, Minsheng duly applied to the Beijing Court for enforcement, which issued the Execution Notice on 14 January 2020 and thereafter took enforcement steps against Fu’s assets. Fu did not make an application to or institute proceedings in the Beijing Court to oppose enforcement under Arts. 12, 13, 22 or 23 of the 2018 Regulations. There was a hiatus from 20 January to 12 March 2020 because of a settlement agreement, but the enforcement proceedings resumed on Minsheng’s application, until the Rulings brought them to an end on 1 December 2020. It can be seen, therefore, this is a system – not found in Hong Kong – in which the rights and liabilities of the parties are in effect determined by the notary office and thereafter enforced by the courts, and the courts do not engage in any adjudication of those rights and liabilities unless there is an application or litigation brought by a party to oppose enforcement on specified grounds. As described by Minsheng’s expert Prof Ji Gefei (紀格非), this system, which allows parties to seek the court’s enforcement of notarised debt instruments directly without going through litigation, is one of the diverse mechanisms of dispute resolution in the Mainland. D4. Whether the Rulings satisfy section 5(2)(e) Examined against this background, it is in our view clear that the Rulings are not a judgment that orders the payment of a sum of money within the meaning of section 5(2)(e). The court proceedings in the Mainland were proceedings for the direct enforcement of the notarised debt instruments, i.e. the Guarantee Agreements, through the special system described above. Minsheng was not a judgment creditor in the Mainland; it sought enforcement not of any judgment but of the notarised debt obligations against Fu. The objects of enforcement (執行標的) were set out in the Execution Certificates issued by the Beijing Notary Office. The relevant sums of money were determined, not by the Beijing Court in the Rulings, but by the Beijing Notary Office, to be payable. The determination or certificate of a notary office is obviously not a Mainland judgment within the meaning in the MJREO. “Mainland judgment” is defined in section 2 to mean “a judgment, ruling, conciliatory statement or order of payment in civil or commercial matters that is given by a designated court”. “Designated court” in turn means “a court in the Mainland which are specified in Schedule 1”. A ruling (裁定書) issued by the Beijing Court – an Intermediate People’s Court – is within the definition of “Mainland judgment”. But the purpose and function of the Rulings was to bring the particular “round” of enforcement proceedings to an end, such closure being apparently a legal and administrative necessity in the Mainland legal system. As Fu’s experts Prof Jiang Ping (江平) and Mr Zhu Zejun (朱澤俊) opine, the true “adjudication” made in the Rulings was that those enforcement proceedings were concluded. The next part in the Rulings, i.e. the final paragraph including the final sentence relied upon by Minsheng, was simply a description or recitation of the existing state of affairs, including the fact that Fu remained liable for performing his obligations, which would be the case irrespective of that paragraph. The final sentence is not a judgment or order which itself made money payable. In substance, after reciting that nothing had been recovered from Fu and that there was at that stage no asset for enforcement, the court ruled that this round of enforcement be terminated. As such, it strains the language to describe the Rulings as a judgment in favour of Minsheng and against Fu, and it is difficult to see how concepts such as “judgment creditor” and “judgment debtor” can arise from the Rulings. It was also recorded in the Rulings that Minsheng had the right to apply to the court for resumption of enforcement. Clearly, however, any resumed enforcement would be enforcement of the notarised debt instruments pursuant to Art. 238 of the Civil Procedure Law and the 2018 Regulations, which was the nature of the enforcement proceedings up until the Rulings. To the extent the Rulings might loosely be said to be a basis for future enforcement, we agree with the judge that this means no more than that they recorded the state of enforcement thus far, so that in practical terms the court could in future pick up where it left off. We can see no basis in Mainland law to suggest that the Rulings themselves could be said to be the subject matter of future enforcement proceedings. Section 5(2)(e) in essence requires that there is a judgment debt – an obligation arising from a judgment to pay a definite sum of money. Here the obligation to pay and the sums payable are determined by the Beijing Notary Office, not by a judgment of any Mainland court. Section 10 provides that if the judgment has been partly satisfied, then it shall only be registered in respect of the balance remaining payable. Here, if any sum is recovered from Fu, it is his obligations set out in the Execution Certificates, rather than a judgment, that would be partly satisfied. Section 12 provides that interest that becomes due “under the judgment” is to be included in the registration of the judgment. Here, interest accrues under the Execution Certificates pursuant to the stipulations set out therein, not under the Rulings. In short, all these provisions are not apt to apply to the Rulings. We also agree with the judge that it would be incongruous with the statutory scheme of the MJREO for a plaintiff to have a fresh period of 2 years for registration every time a Mainland court issues a ruling at the conclusion of a round of enforcement stating that the defendant continues to be liable to perform such part of his obligations as remains outstanding. It follows that section 5(2)(e) is in our view not satisfied and the registration of the Rulings was correctly set aside by the judge on this ground. It is unnecessary to express any opinion on Mr Lam’s suggestion that what might satisfy section 5(2)(e) in the present case was instead the Execution Notice issued by the Beijing Court on 14 January 2020. That suggestion has its own problems which we need not delve into here. E. The No Chosen Court Ground Though strictly unnecessary, we shall briefly deal with the two grounds raised by Fu’s respondent’s notice. Under section 5(2)(a), to be registered the Mainland judgment must be given by a “chosen court”. “Chosen court” is defined in section 2 to mean, so far as relevant here, “the court or any of the courts specified in a choice of Mainland court agreement … as the court to determine a dispute to which the agreement applies”. A “choice of Mainland court agreement” is in turn defined in section 3(2) to mean: “ an agreement concluded by the parties to a specified contract and specifying the courts in the Mainland or any of them as the court to determine a dispute which has arisen or may arise in connection with the specified contract to the exclusion of courts of other jurisdictions.” The judge held that clause 12.2 of the Guarantee Agreements (quoted in §6 above) was the relevant choice of Mainland court agreement here. It was an agreement between Minsheng and Fu choosing the Mainland courts under Art. 238 of the Civil Procedure Law to deal with enforcement of Fu’s notarised debt obligations. The words “in connection with” in section 3(2) are wide enough to cover disputes over enforcement. In general we do not disagree with the judge that the words “in connection with” in section 3(2) have a wide import. In the context of the present case, however, as there was no “dispute” actually raised during the enforcement stage, and since we have, in agreement with the judge, found that the Rulings were not operative orders requiring the payment of money and determined nothing in favour of Minsheng or against Fu, it seems to us artificial to debate whether, in relation to the Rulings, clause 12.2 of the Guarantee Agreements was the relevant choice of Mainland court agreement. It is unprofitable to engage in a distorted discussion of the requirement of a choice of Mainland court agreement based on a false assumption that the Rulings fulfil all the other requirements for registration. F. The Not Summoned to Appear Ground Section 18(1) provides that the registration of the judgment shall be set aside if the court is satisfied of any one of the matters specified in paragraphs (a) to (k), including in particular: “ (f) the judgment debtor who did not appear in the original court to defend the proceedings— (i) was not summoned to appear according to the law of the Mainland; or (ii) was so summoned but was not given sufficient time to defend the proceedings according to the law of the Mainland” Fu contended that since the Rulings were given without him appearing in the Beijing Court to defend the proceedings, and he was not summoned to appear according to the law of the Mainland, their registration must be set aside pursuant to section 18(1)(f)(i). He argued that the phrase “according to the law of the Mainland” in that provision refers to the mode of summoning, so that the condition in paragraph (i) is satisfied as long as the person was not summoned in a manner that accorded with Mainland law regardless of whether there was any requirement under Mainland law for him to be summoned. The judge rejected this argument. He held that the phrase “according to the law of the Mainland” is concerned with whether the judgment debtor must by Mainland law be summoned to appear, and therefore held that section 18(1)(f)(i) is only applicable where Mainland law requires the judgment debtor to be summoned to appear but the requirement is not met. This did not apply to the present case because under the procedures for enforcing notarised debt instruments, there was no requirement under Mainland law to summon Fu to appear before the Beijing Court. On appeal, Mr Lam SC maintains the argument below. He says that section 18(1)(f)(i) means that the registration must be set aside if (1) the judgment debtor did not appear in the original court to defend, and (2) either (a) he was not summoned to appear at all, or (b) he was summoned but not in a manner in accordance with Mainland law. This, he submits, is more consistent with the protection of the rights of a defendant under Hong Kong’s notions of fairness. The judge’s construction would leave entirely to Mainland law the question whether the judgment debtor has a right to be heard, so that if Mainland law does not require the judgment debtor to be summoned to appear, his non-appearance will not be a ground for setting aside registration. Mr Lam also submits that the Chinese version of section 18(1)(f)(i), which reads “沒有按照內地法律被傳召出庭”, supports his construction. We do not accept Mr Lam’s submissions. The statute does not mention the mode of summoning, and we see no reason why overriding importance should be attached to the mode of summoning the defendant to appear. If notice to appear was in fact given to the defendant albeit not via a mode prescribed by Mainland law, but the defendant chose not to appear, we do not see why Hong Kong law should make it mandatory for the registration of the judgment to be set aside for that reason alone. Rather, section 18(1)(f)(i) seems to us to be concerned with ensuring that the defendant was in fact given such opportunity as he should have been afforded under Mainland law to contest the proceedings. We do not agree that this would leave the right of the judgment debtor to be heard completely to Mainland law. It should be remembered that apart from paragraph (f), there are also paragraph (g) (“the judgment was obtained by fraud”) and paragraph (j) (“the enforcement of the judgment is contrary to public policy”) in section 18(1). As pointed out in the Explanatory Report on the 2005 Hague Convention on Choice of Court Agreements (by Trevor Hartley & Masato Dogauchi) at §190, these three grounds have considerable overlap amongst one another and “all relate, partly or wholly, to procedural fairness” which is “also known as … natural justice” in some jurisdictions. In proposing the Bill for the MJREO, the Administration had also explained that the defence of natural justice was encompassed by the public policy defence. In the context of enforcement of arbitral awards in Hong Kong, it has been held that the public policy ground for refusing enforcement encompasses fundamental conceptions of morality and justice of the forum: see Hebei Import & Export Corp v Polytek Engineering Co Ltd (1999) 2 HKCFAR 111, 139. It follows, in our view, that there is no relevant lacuna in section 18. If Mainland law does not require the defendant to be summoned to appear, section 18(1)(f)(i) is inapplicable, but if the Hong Kong court is satisfied that there was as a result a fundamental breach of natural justice, the registration of the judgment could still be set aside under section 18(1)(j). We do not think that the Chinese version of section 18(1)(f)(i) is more consistent with Mr Lam’s construction than the judge’s. Accordingly we reject the Not Summoned to Appear Ground. G. Conclusion and Orders For the above reasons, we dismiss Minsheng’s appeals. Having regard to the outcome in the appeals and on the points raised by the respondent’s notice, we make an order nisi that Minsheng do pay Fu 75% of the costs of the appeals. (Carlye Chu) Vice President (Thomas Au) Justice of Appeal (Godfrey Lam) Justice of Appeal Mr Bernard Man SC & Mr James Man, instructed by Messrs. Anthony Siu & Co., for the Plaintiff (Appellant) Mr Douglas Lam SC, Mr Michael Lok & Ms Clara Wong, instructed by Messrs. Li & Partners, for the Defendant (Respondent)