HONG KONG Law and Practice Contributed by: George Lamplough, Edward Beeley, Vanessa Cheng and Curtis Pak, Holman Fenwick Willan
The applicant must show that there is reason to believe that the debtor is about to leave Hong Kong and the debtor’s departure will likely obstruct or delay judgment or satisfaction thereof.
The application for an Anton Piller order is made ex parte (hence there is a duty to give full and frank dis - closure) and is executed without notice to the defend - ant. The pre-conditions for making an Anton Piller order are: • there must be an extremely strong prima facie case; • the potential or actual damage must be very seri - ous; • there must be clear evidence that the defendant has in their possession relevant materials or docu - ments, and that there is a real possibility that they may destroy such material before any inter partes application can be made; and • the harm to be caused by the execution of the order to the defendant must not be excessive or out of proportion to the legitimate object of the order. Due to their draconian effect, Anton Piller orders are only granted in “rare and extreme cases” where it is necessary in the interests of justice, and in terms no wider than is necessary to achieve the legitimate objective of the order. The plaintiff will be required to give a cross-undertak - ing in damages as part of the Anton Piller order. 2.3 Obtaining Disclosure of Documents and Evidence From Third Parties NPOs NPOs are usually sought against banks that inadvert - ently handle stolen funds, and have visibility over when and where they went next, as well as the identity of the account holder. NPOs can also be sought against accountants, company secretaries and, potentially, law firms. The information sought by the plaintiff can range from remittance advices and bank statements to bank account-opening documents disclosing the identity of the bank account holder and signatories. NPOs do not traditionally operate extraterritorially. However, the decision in A1 and A2 v R1, R2 and R3
2. Procedures and Trials 2.1 Disclosure of Defendants’ Assets Mareva Injunctions
A Mareva injunction may also require defendants to disclose what has become of the plaintiff’s property, and to disclose details of all assets owned or con - trolled by them, whether in their own name or not. The Hong Kong courts have the power to grant Mareva injunctions on a worldwide basis and require defendants to disclose the nature and value of their worldwide assets. Ancillary Disclosure Orders The court has inherent jurisdiction to order defend - ants to: • provide a statement of their assets; and • give discovery of documents or answer interroga - tories for the purpose of ascertaining the existence, nature and location of those assets. The disclosure order would include assets held in the name of the defendant and assets held jointly with other person(s), as well as those held by nominees on the defendant’s behalf. If defendants fail to comply with a disclosure order, they and their directors may be liable for contempt of court. 2.2 Preserving Evidence Anton Piller Orders Where it is feared that important evidence may be destroyed or suppressed, a plaintiff may obtain an Anton Piller order requiring the defendant to permit the plaintiff to enter the defendant’s premises and inspect, seize and remove documents relating to the underly - ing matter into safe custody.
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