Ch 6 Enforcement of Judgments

When dealing with arrears the starting point is that they will not be enforced by the court if they are over a year old unless there are special circumstances.

As of 2017 following the decision in  YBL v LWC CACV 244/2015 – the starting point is now: ‘the analysis and the remedial interpretation we give to rule 87 above, there is an urgent need to revise the current practice for the judgment summons regime.  The best way forward is of course to amend Rule 87.  But unfortunately, experience shows that such a course is likely to take considerable time.  Pending legislative amendments, it would be necessary to issue a practice direction to set out the proper practice.  We urge the judge in charge of the Family Law List in the High Court and the judges in the Family Court to give the matter immediate attention and to issue practice direction setting out the procedures for the judgment summons regime having regard to Articles 10 and 11 of HKBoR.  The Family Court should also consider publishing leaflets and standard forms to assist and guide litigants in person in applying and defending judgment summons.  In this connection, the Director of Legal Aid would also have to review the current policy of not providing representation in judgment summons.’

CSL v WWK CACV 247/2003; [2006] (Application for Arrears After 12 Months) HKFLR 518

If an applicant can wait for over a year before applying for enforcement it means that she was able to manage without the money now sought. Nonetheless, the court should still pay regard to the extent the applicant has taken to assert her rights. The fact that a person liable to pay the maintenance is an irregular or reluctant payer is not unusual circumstances justifying a departure from the rule : see a discussion of this topic in Russell v. Russell [1986] 1 FLR 465 and Dickens v. Pattison [1985] FLR 610.

Use of Judgment Summons in Family Proceedings a Draconian Step – Family practitioners should bear this in mind when they advise their clients to enforce a judgment debt by judgment summons.  In particular they should consider whether it is BoR compliant to combine a process of examination of debtor with a process of commitment.

CYM and YML aka YMLJ CACV 14/2012

Per Lam JA para 50ff.

It has to be remembered that judgment summons is a draconian procedure.  It may result in the imprisonment of the judgment debtor. We understand that judgment summons procedure has often been adopted by family practitioners in enforcement of arrears.  Unfortunately, there is a tendency of using this as the primary means of enforcement without considering whether less draconian means is more appropriate. When I pointed out in the course of argument that it is possible to seek a court order for payment of a judgment sum by a certain date without using a judgment summons, Ms Yip’s initial reaction was that this could not be done.  When she was referred to Order 45 Rule 6 RHC, counsel agreed this could be done.  In my view, like committal proceedings in other types of civil litigation, judgment summons should be a last resort.  In cases where the parties have genuine bona fide disagreement on the interpretation of an order instead of a recalcitrant judgment debtor, or where the parties have bona fide dispute about the quantum of an item under an order for payment, such disputes should be resolved by a summons taken out under Order 45 Rule 6 instead of a judgment summons.

Likewise, in cases where there is genuine bona fide dispute on the judgment debtor’s ability to pay (and very often such debtor would take out an application for variation), those representing a judgment creditor should reflect on the appropriateness of the continuation of the judgment summons procedure after seeing the evidence of the judgment debtor.  Given the penal consequence, like a committal for civil contempt, the judgment creditor has to satisfy the court beyond reasonable doubt that the judgment debtor has the means to pay the judgment debt, see Kao, Lee & Yip v Koo Hoi Yan (2009) 12 HKCFAR 830. If a judgment creditor has no firm and cogent evidential basis to discharge such onus, it would not be appropriate to proceed by way of judgment summons.

The judgment summons procedure, as applied in Hong Kong at present, has been subject to successful challenge for infringement of human rights in the United Kingdom: see Mubarak v Mubarak [2001] 1 FLR 698.  As a result, the rules under CCR Order 28 were changed in England [See the relevant discussion under CCR Order 28 in the English White Book]. Though this is not the occasion for discussing at length the merits of a similar challenge in Hong Kong, I would point out that there are similar safeguards for human rights in Hong Kong in Articles 10 and 11 of our Bill of Rights.  Family practitioners should bear this in mind when they advise their clients to enforce a judgment debt by judgment summons.  In particular they should consider whether it is BoR compliant to combine a process of examination of debtor with a process of commitment.

As of 30 December 2016 this has now been addressed by the Hong Kong CA in an important decision on Enforcement Procedure for Judgment Debt – Following Mubarak v Mubarak [2001] 1 FLR 698 the leading judgment on enforcement procedure in matrimonial proceedings is now  YBL v LWC CACV 244/2015 . This is a very wide-ranging judgment which needs to be read in full, but it was held, inter alia: ‘as a matter of Hong Kong jurisprudence and the legislative framework underpinning Rule 87, we are satisfied that a judgment debtor can only be committed to the prison under the judgment summons if the court is satisfied beyond reasonable doubt that he or she is able to satisfy the judgment wholly or partly or has disposed of assets with a view to avoiding satisfaction of the judgment wholly or partly. In other words, imprisonment can only be ordered when one of the criteria in Order 49B Rule 1B(1) of The Rules of the High Court, Cap 4A is satisfied’ The CA also objected to the common ‘practice’ of the Family Court: ‘the practice in the Family Court in reliance on that provision to order payment of all arrears accrued up to the date of order (as opposed to the arrears up to the date of the judgment summons).  The practice is apparently adopted to dispense with multiple judgment summonses being issued for ongoing arrears.  If an order of committal is made, the payment of this amount is set as the sum the judgment debtor must pay to have a committal suspended.  In our judgment, whilst we can see the utility of the practice in terms of the new order for payment in the examination process, as a matter of principle, there is a serious problem if this is adopted as well for the committal process.  The practice means that throughout the committal process, the charge is evolving.  To establish a case of default up to the date of the judgment summons, the judgment creditor needs to establish the means of the judgment debtor during the defaulting period. However, if further arrears were added in the course of the committal proceedings, it effectively means that the judgment creditor can commit the judgment debtor on his means after the judgment summons.  Thus, the charge is being constantly expanded and the judgment creditor can succeed even though he fails to establish the means of the judgment debtor for the pre-judgment summons period so long as he manages to establish the latter’s means for the post-judgment summons period.  This is a breach of Article 11(2)(a) and (b).’ (para 58).

Judgment Summons Set Aside – Lack of Full and Frank Disclosure at Ex Parte Stage

LAL v JAW FCMC 5389/2007 – Per DDJ Carlson 4th June 2013

‘See Hong Kong Civil Procedure 2013 page 650 29/1/51 – On any ex parte application the applicant must proceed with the utmost good faith … The fact that the court is asked to grant relief without the person against whom the relief is sought having the opportunity to be heard makes it imperative that the applicant should make full and frank disclosure of all the material facts … … where the applicant fail to make full and frank disclosure the orders may be set aside without regard to the merits. ” .

These remarks and what follows in this note to Order 29r1 of the RHC relate to applications for ex-parte interlocutory injunctions but there is no doubt that they apply with, I venture to think, even greater force when an application is made to the court to issue proceedings which seek the committal of a person who will stand as the respondent to the process applied for.’

Judgment Summons in Open Court

C (formally known as C) v H HCMP 930/2012; [2012] 3 HKLRD 351 – Per Hon Tang VP:

L v L [2001] 1 HKLRD 150 (Leong and Le Pichon JJA and Cheung J) supports the view that ordinarily the judgment summons should be dealt with in open court after the variation summons had been dealt with in chambers. That this is so, is further supported by para 12 of the Family Court Practice issued by the Law Society:

Law Society of Hong Kong – Circular 09-358 (PA) 18th May 2009

Family Court Practice Revised May 2009

Para 12: Judgment Summonses in the Family Court (May 2009)

  1. Hearings

The Court of Appeal has declared the Family Court practice of hearing applications for ancillary relief and judgment summons together in a single hearing to be wrong as a matter of principle and practice. Members should review the following judgments: C v C and Another (CACV272/2002)
 and
 L v L (2001 1HKLRD 150)

 The practice of most of the Family Judges now is to deal with and make decision on the variation summons first, and that thereafter the matter will be stood down to give the parties time to reconsider their positions. 

The Judge will then robe and proceed to deal with the Judgment Summons in open court. If the Judge needs to reserve decision on the variation application, then the Judgment Summons will be adjourned to another day for an open court hearing. 

Burden of Proof
Practitioners are reminded of the burden of proof in the following applications:

  • Judgment Summons on the applicant is “beyond reasonable doubt
  • Variation application: it is “on a balance of probabilities”.
  1. Hearings in Open Court

Members should note the following:-

(i)    Hearing of an application for a Judgment Summons in the Family Court must be heard in open court.

(ii)  Court dress is required for appearances in Open Court:-

  • white blouse/collarette or white wing collared shirt/bands
  • dark suit
  • robes

(a)  Hearings: The Court of Appeal has declared the Family Court practice of hearing applications for ancillary relief and judgment summons together in a single hearing to be wrong as a matter of principle and practice.  Members should review the following judgments:

C v C and Another (CACV 272/2002) and L v L (2001 1 HKLRD 150)

The practice of most of the Family Judges now is to deal with and make decision on the variation summons in chambers first, and that thereafter the matter will be stood down to give the parties time to reconsider their positions.

The Judge will then robe and proceed to deal with the Judgment Summons in open court.  If the Judge needs to reserve decision on the variation application, then the Judgment Summons will be adjourned to another day for an open court hearing.

I have no doubt that such “practice of most of the Family Judges” (the Practice) is the correct practice and should be followed unless there are compelling reasons otherwise.