In Beijing Songxianghu Architectural Decoration Engineering Co., Ltd v Kitty Kam [2025] HKCA 1134, the Court of Appeal upheld an “unless order” and the judgment entered against the Defendant upon non-compliance. The HK$220 million judgment was the culmination of a string of interlocutory victories against the Defendant, who was found to “deploy whatever litigation games and tactics in order to frustrate the claims of [the Plaintiff] and the orders made by the Court” ([2025] HKCFI 3356 at §4).
Factual Background
The Plaintiff sued the Defendant (“Kam”) for return of investments in Kam’s corporate vehicle pursuant to Kam’s fraudulent misrepresentation. The claimed sums comprised a sum of HK$220,548,682 (“Sum A”) and a sum of HK$32,500,000 (“Sum B”).
To preserve her assets and discover the location of the Sums A and B, the Plaintiff sought and obtained various interlocutory orders, including (among others):-
- Mareva Injunction: An injunction freezing Kam’s assets to the amount of the Plaintiff’s entire claim, with ancillary disclosure orders requiring Kam to disclose the location of Sums A and B ([2023] HKCFI 259);
- Proprietary Injunction: A proprietary injunction restraining Kam from disposing of or dealing a sum of HK$170 million within Sum A (the “Subject Sum”), which was found to be held in Kam’s bank account in Singapore ([2024] HKCFI 2194); and
- Repatriation Order: An order that Kam do pay the Subject Sum from Singapore into the High Court in Hong Kong ([2024] HKCFI 2194).
Kam nonetheless failed to comply with the Repatriation Order. The Plaintiff thus applied for an order that unless Kam complies with the Repatriation Order, judgment over the entire Sum A shall be entered against Kam (the “Unless Order”).
The Plaintiff successfully obtained the Unless Order ([2024] HKCFI 3068). DHCJ KC Chan explained that Kam’s failure to comply with the Repatriation Order was “flagrant, inexcusable, and contumelious”. The learned Judge further rejected (1) Kam’s unsworn evidence that she could not comply with the Repatriation Order; and (2) Kam’s proposed alternatives for purportedly securing a fair trial, including (e.g.) contempt and arrangements for an early trial.
Kam subsequently failed to comply with the Unless Order. A judgment in respect of Sum A (the “Judgment”) against Kam was thus obtained.
Kam appealed against the Unless Order and the Judgment. Leave to appeal was refused ([2024] HKCFI 3614).
Kam then further appealed to the Court of Appeal, arguing that: (1) the Unless Order was impermissibly punitive given the her inability to comply with the Repatriation Order; (2) unless orders should be used to secure due process in a fair trial, not to prevent an “empty judgment” following a trial; and (3) the Unless Order was disproportionate and illogical because there were other sanctions available, and the Judgment far exceeded any conceivable penalty imposable for contempt.
The Court of Appeal’s Judgment
The Court of Appeal upheld the Unless Order and the Judgment, and dismissed Kam’s appeal. G Lam JA (giving the Judgment of the Court) observed that:-
- The Unless Order involved no punishment. The Judge was cognisant that an unless order should be used to ensure compliance with a court order, not to punish for past non-compliance. The Judge was right to reject Kam’s unsworn evidence of her inability to comply with the Repatriation Order, and proceed on the basis that the Unless Order may encourage compliance with the Repatriation Order by Kam (§§51-58).
- Unless orders can be deployed not just to secure fairness in the adjudicative process, but also to secure an effective and realistic outcome in litigation (§§59-65). (This argument of the Plaintiff made at first instance was also accepted in China Evergrande Group (in liq) v Hui Ka Yan [2025] 3 HKLRD 66 at §§72-74 per Coleman J.)
- The Unless Order was logical and proportionate. While the non-compliance related only to the Subject Sum, it was open to the Judge to impose a sanction in respect of the entire Sum A since (1) the Plaintiff mounted a proprietary claim over the entire Sum A, and (2) the Subject Sum and the remainder of Sum A are comprised in the same cause of action (§77).
Key Takeaways
Other than the matters of principles above, the result secured illustrates various practical insights for practitioners:-
- Use of unless orders where contempt ineffective. An unless order can be deployed where contempt proceedings are theoretically possible but practically ineffective (§67). Unless orders are thus especially useful where the delinquent defendant is out of jurisdiction and/or a company, for whom the threat of contempt may not secure timely compliance of Court orders.
- Evidence formalities should be followed. The Court of Appeal reaffirmed the importance of using sworn evidence by litigants, as opposed to merely exhibiting an unsigned affidavit to a solicitor’s affirmation. A non-compliant draft affirmation may be inadmissible, and its contents may be considered incredible in any event (§§55-56).
- Strategic interlocutory planning. This case demonstrates the value of strategically deploying the Court’s full arsenal – Mareva and Proprietary Injunctions, Repatriation, and Unless Orders – against delinquent defendants. Each step was indispensable: non-compliance with Mareva disclosures justified subsequent interlocutory orders, while the proprietary claim allowed judgment to extend to the entire Sum A rather than just the Subject Sum which were to be repatriated (§77). Consequently, judgment “for a very substantial sum … based on serious allegations of fraud” could be secured despite the defendant’s calculated obstruction (§71).
Read the judgment here: https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=175525&currpage=T
Mr Douglas Lam SC, leading Ms Sabrina Ho, Mr Arthur Poon, and Mr Alex Yeung, instructed by Messrs PC Woo & Co, acted for the Plaintiff.
