HONG KONG SAR, CHINA Law and Practice Contributed by: George Lamplough, Vanessa Cheng and Curtis Pak, Holman Fenwick Willan
5. Enforcement 5.1 Methods of Enforcement Enforcement of Criminal Offences The principal authorities that investigate criminal
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 debt - or would be unduly prejudiced by the making of the order. Writ of execution A writ of execution directs a bailiff to seize the judgment debtor’s goods, chattels and other property to satisfy the judgment debt. The judg - ment creditor must issue a writ of execution of the type it requires, eg: • 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-exam - ination 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 petition 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 judgment 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 appoint - ment of the liquidator/trustee has no special
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 market 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 gar - nishee 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 mak - ing of a charging order, the judgment creditor can enforce the charging order by selling the charged land or securities.
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