HONG KONG Law and Practice Contributed by: George Lamplough, Edward Beeley, Vanessa Cheng and Curtis Pak, Holman Fenwick Willan
Writ of execution A writ of execution directs a bailiff to seize the judg - ment debtor’s goods, chattels and other property to satisfy the judgment debt. The judgment creditor must issue a writ of execution of the type it requires; for example: • a writ of fieri facias, to obtain a levy on the debtor’s goods; • a writ of possession, to obtain repossession of land; or • a writ of delivery, for the delivery of goods. Examination order An examination order is an order for cross-examina - tion of the judgment debtor on oath in open court. Usually, the Registrar (or their appointee) will carry out the cross-examination. Winding-up petition/bankruptcy If the judgment debtor can be shown to be insolvent, the judgment creditor can present a winding up peti - tion against a debtor company or instigate bankruptcy proceedings against an individual debtor. If the court grants the petition, a liquidator or trustee in bankruptcy will be appointed to gather in the judg - ment debtor’s assets and pay their debts. Winding up and bankruptcy are class remedies, which benefit the whole body of creditors. The judgment creditor who petitioned for appointment of the liquida - tor/trustee has no special priority (unlike, for instance, secured creditors) and will rank pari passu with all other creditors of the same class. 5.2 Enforcement of Foreign Judgments As Hong Kong is not a signatory of the Hague Con - vention on Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, foreign judgments can only be enforced in Hong Kong either through the: • Foreign Judgments (Reciprocal Enforcement) Ordi - nance (Cap 319) (FJREO); • Mainland Judgments in Civil and Commercial Mat - ters (Reciprocal Enforcement) Ordinance (Cap 645) (MJREO); or
of acts committed whether by him or otherwise, within the jurisdiction”.
5. Enforcement 5.1 Methods of Enforcement Enforcement of Criminal Offences The principal authorities that investigate criminal
offending in Hong Kong are: • the Hong Kong Police Force; • the ICAC; • the JFIU; and
• the Securities and Futures Commission (SFC), which deals with insider dealing offences and mar - ket abuse. The burden of proving the commission of an offence by the defendant is on the prosecuting authority and the standard of proof is “beyond reasonable doubt”. Enforcement of a Judgment or Order Garnishee order Where a plaintiff has obtained a judgment in their favour for a specified sum (usually the amount received by the defendant during the fraud), the defendant becomes a judgment debtor, and the plaintiff can apply for a garnishee order. A garnishee order requires a person who owes the judgment debtor a debt to repay that debt directly to the judgment creditor. A typical garnishee order requires the judgment debtor’s bank to pay the judgment debtor’s debt directly to the judgment creditor. Charging order A charging order is a charge on an interest in land or over securities. If the judgment debtor does not satisfy the judgment following the making of a charging order, the judgment creditor can enforce the charging order by selling the charged land or securities. In deciding whether to make a charging order, the court considers the circumstances of the case as well as the personal circumstances of the debtor, and whether the creditor or the debtor would be unduly prejudiced by the making of the order.
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