Yesterday, in one of the High Courtโs first summary judgment decisions following the CFAโs decision in ๐พ๐๐๐ ๐ช๐๐ ๐ฏ๐๐๐ ๐ ๐ณ๐ ๐พ๐๐๐ ๐ท๐๐[2026] HKCFA 14, the Court entered judgment against a defendant raising a defence tainted by foreign illegality.
The CFA recently confirmed that Hong Kong adopts the ๐ท๐๐๐๐ ๐ ๐ด๐๐๐๐ โrange of factorsโ approach to the defence of illegality, requiring the Court to consider the relevant policy considerations and circumstances of the particular case.
In the present case, however, the Court reiterated the guidance in ๐น๐๐ ๐๐ ๐ฐ๐๐ ๐๐๐๐๐๐๐ ๐ณ๐๐ ๐ ๐ช๐๐๐ ๐บ๐๐๐ ๐พ๐๐ย (2015) 18 HKCFAR 544 and held that where the defence falls within โType 2โ โ namely, where performance of the contract requires or necessarily involves conduct illegal under the laws of the place where it is to be performed โ the Patel โrange of factorsโ approach does not need to be applied.
As the defendant could not rely on a bona fide purchaser without notice or change of position defence, there was no real prospect of resisting the claim, and summary judgment was entered for the Plaintiff (at [35]โ[37]).
Parkside’s Ernest Ng instructed by Tanner De Witt,ย acted for the Plaintiff.
The judgment is available here: https://lnkd.in/gHvz8g8y
Read more about Ernest here
