HONG KONG SAR, CHINA Law and Practice Contributed by: Edwin Northover, Jan Buschmann and Tony Dymond, Debevoise & Plimpton
• issuing and service of originating process by way of writ of summons, originating summons or peti- tion; • filing pleadings such as the statement of claim, defence and reply; • discovery and inspection of documents; • exchange of factual witness statements; • filing of expert reports (if required); and • trial. 9.4 Enforcement of Judgments Domestic Judgments The most common ways to enforce domestic judg- ments in Hong Kong include the following. • Garnishee proceedings – where a third party (the garnishee) owes money to the judgment debtor, the judgment can be enforced directly against the garnishee. The garnishee will then pay its debts to the judgment creditor instead of the judgment debtor. This option is commonly used against the judgment debtor’s bank. • Charging order/order for sale of assets – judgment creditors can obtain security over the assets of the judgment debtor. • Writ of fieri facias – also known as a FiFa order, this allows an officer of the court to seize and sell the judgment debtor’s goods and chattels. • Bankruptcy or insolvency proceedings may also be considered. Foreign Judgments – Statutory Registration Scheme A foreign judgment can be enforced in Hong Kong either through the statutory registration scheme based on reciprocity under the Foreign Judgments (Recipro- cal Enforcement) Ordinance (Cap 319) (FJREO) or at common law. Under the FJREO, judgments from “superior courts” of 15 countries (namely, Australia, Austria, Belgium, Bermuda, Brunei, France, Germany, India, Israel, Italy, Malaysia, the Netherlands, New Zealand, Singapore and Sri Lanka) are enforceable by the simple proce- dure of registration through an application to the Court of First Instance, provided that the application is made within six years of the original judgment.
Once leave is granted, the foreign judgment can be enforced in the same way as a Hong Kong judgment. Foreign Judgments – Common Law If the foreign judgment is not from a country listed under the FJREO, it can only be enforced at common law. In this case, the foreign judgment will form the basis of a cause of action, and the judgment will be treated as a debt between the parties. To be enforce- able at common law, the following requirements must be met: • the foreign judgment must have been for a debt or a definite sum of money, and the defendant must have submitted to the jurisdiction of the foreign court; • the foreign judgment was final and conclusive; • the foreign judgment was not obtained by fraud and was obtained against the same defendant; • the foreign judgment was not contrary to Hong Kong rules of public policy or notions of natural justice; • the foreign court had jurisdiction over the defend- ant according to Hong Kong rules; and • an action in Hong Kong based on a foreign judg- ment must be brought within 12 years from the date on which the foreign judgment became enforceable. Mainland Judgments Enforcement of People’s Republic of China (PRC) judgments is governed by the “Arrangement on Reciprocal Recognition and Enforcement of Judg- ments in Civil and Commercial Matters by the Courts of the Mainland and of the Hong Kong Special Admin- istrative Region” and the Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance (Cap 645) (MJREO). The MJREO provides for the mutual enforcement of Hong Kong and PRC judgments in civil or commercial matters, as well as judgments in criminal matters that contain an order for payment in respect of compensation and damages. In order to register a PRC judgment in Hong Kong: • the judgment must be from a court that is a des- ignated court under the MJREO (ie, courts at the
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