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A A
FCMP 103 / 2012
B B
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D MISCELLANEOUS PROCEEDINGS NO. 103 OF 2012 D
E ---------------------------- E
BETWEEN
F F
YPC also known as CL Applicant
(the Payee)
G G
H H
and
I I
SSHL Respondent
J (the Payer) J
------------------------
K K
L L
Coram: Deputy District Judge G. Own in Chambers (Not Open to Public)
M M
th
Date of Hearing: 11 November 2015
N N
Date of Judgment: 4th December 2015
O O
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P P
JUDGMENT
Q (Judgment Summons : Setting Aside) Q
-------------------------
R R
S S
T T
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V V
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A A
Introduction
B B
C 1. This is the Respondent’s (the Payer’s) Summons dated 14 July C
2015 (“SA Summons”) for setting aside a Judgment Summons dated 22
D D
May 2012 (“Judgment Summons”). This SA Summons was only issued
E and filed in the morning of 20 July 2015 (which was the date scheduled for E
hearing of the Judgment Summons). This SA Summons was listed for
F F
hearing on 14 August 2015 with 30 minutes reserved. The SA Summons
G was served on the Department of Justice (“DOJ”) who acted for the G
Registrar of the District Court (“the Registrar”).
H H
I 2. At the hearing of the Judgment Summons, the Respondent was I
J
legally represented and Counsel Mr. Shaphan Marwah was instructed to J
appear. Counsel submitted the Judgment Summons would be opposed.
K K
In light of the SA Summons having been filed and served, the DOJ who had
L
already filed its legal submissions and authorities on 17 July 2015 before L
they were properly served with the SA Summons, agreed to have the
M M
Judgment Summons adjourned pending determination of the SA Summons.
N Leave was also sought by the DOJ and was granted by this Court for the N
Registrar to be excused from hearings in the subsequent proceedings,
O O
including the hearing(s) of the SA Summons.
P P
3. With the parties’ consent that a 2-hour hearing may be
Q Q
required, the hearing originally scheduled for the SA Summons on 14
R August 2015 was vacated and re-fixed to 11 November 2015 at 10:30 a.m. R
S S
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A A
Historical Background
B B
C 4. By an Order granted by the Supreme Court of British C
Columbia on 26 October 2007 (“the Canadian Order”), the Respondent
D D
was ordered to pay maintenance for 4 Children in the amount of
E CAD$2,000 per month commencing 1st July 2005 and continuing on the 1st E
day of each and every month for so long as the Children are “children of
F F
the marriage” as defined in the Divorce Act.
G G
5. There had been attempt by the Respondent to seek variation of
H H
the Canadian Court Order in the Vancouver Supreme Court and suspension
I of enforcement action until conclusion of such variation proceedings in I
J
Canada. J
K K
6. As the Respondent had not complied with the Default Hearing
L
demands within the Family Maintenance Enforcement Program (“FMEP”) L
in Canada, the Registrar was requested by the FMEP on 20 October 2011
M M
to remove any enforcement suspension and commence necessary legal
N action against the Respondent. N
O O
7. Further matters that had emanated since the Canadian Court
P Order was granted until 20 October 2011 were set out in the Affirmation of P
Clement Lee Hing Nin, the then Temporary Registrar of this Court (as he
Q Q
then was) dated 30 April 2012, which I do not intend to repeat here save
R and except only when necessary for this Judgment. R
S S
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A A
The Law
B B
C 8. These proceedings were commenced by the Registrar pursuant C
to the Maintenance Orders (Reciprocal Enforcement) Ordinance,
D D
Cap.188 (“the MOREO”) to enforce payment on behalf of the Applicant
E (“the Payee”). E
F F
9. Section 7 of the MOREO provides :-
G G
“Registration in Hong Kong of maintenance order made in
H reciprocating country H
I (1) This section applies to a maintenance order, whether before or after I
the commencement of this Ordinance, by a court in a reciprocating
J country, including such an order made by such a court which has J
been confirmed by a court in another reciprocating country, but
excluding a provisional order which has not been confirmed.
K K
(2) Where a certified copy of an order to which this section applies is
L received by the Chief Executive from the responsible authority in a L
reciprocating country, and it appears to the Chief Executive that the
payer under the order is residing in Hong Kong, he shall send the
M M
copy of the order to the Registrar of the District Court.
N (3) Where the Registrar receives from the Chief Executive a certified N
copy of an order to which this section applies, he shall, subject to
subsection (4), register the order in the court in the prescribed
O manner. O
P (4) Before registering an order under this section the Registrar shall take P
such steps as he thinks fit for the purpose of ascertaining whether the
payer under the order is residing in Hong Kong, and if after taking
Q those steps he is satisfied that the payer is not so residing he shall Q
return the certified copy of the order to the Chief Executive with a
R
statement giving such information as he possesses as to the R
whereabouts of the payer.”
S S
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A A
10. Section 9 of the MOREO provides :-
B B
C “Enforcement of maintenance order registered in Hong Kong C
D D
(1) A registered order may be enforced in Hong Kong as if it had been
made by the District Court and as if that court had had jurisdiction to
E make it, and proceedings for or with respect to the enforcement of E
any such order may be taken accordingly.
F F
(2) Any person for the time being under an obligation to make payments
in pursuance of a registered order shall give notice of any change of
G address to the Registrar of the District Court, and any person failing G
without reasonable excuse to give such a notice commits an offence
and is liable to a fine not exceeding $500.
H H
(3) (a) A sum ordered to be paid under a registered order shall be
I recoverable as a civil debt. I
(b) If an application is made to the District Court alleging that
J default has been made in paying a sum ordered to be paid under J
a registered order, the District Court may, if it considers the
circumstances require it, for the purpose of securing the presence
K K
of the person alleged to be in default, issue a warrant to arrest
him and bring him before the court, whether or not a summons
L has been issued previously. L
(4) On the hearing of an application for enforcement of a registered
M M
order, the District Court may remit the whole or any part of the
amount due under the order.
N N
(5) In any proceedings for or with respect to the enforcement of an order
which is for the time being registered in the District Court under this
O Ordinance a certificate of arrears sent to the Registrar shall be O
evidence of the facts stated therein.
P P
(6) Subject to subsection (7), sums of money payable under a registered
order shall be payable in accordance with the order as from the date
Q on which they are required to be paid under the provisions of the Q
order.
R R
(7) The District Court may, if it decides to confirm a provisional order
under section 8, direct that sums of money payable under the order
S shall be deemed to have been payable in accordance with the order as S
from the date on which they are required to be paid under the
provisions of the order or such later date as the District Court may
T specify, and subject to any such direction, a maintenance order T
registered under section 8 shall be treated as if it had been made in
U U
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A A
the form in which it was confirmed and as if he had never been a
B provisional order.” B
C C
11. Moreover, the Maintenance Orders (Reciprocal
D
Enforcement) Rules, Cap.188A (“MORER”) provides, inter alia, as D
follows :-
E E
F
“Rule 8 : Method of payment of sums due under a provisional order F
G (1) Payment of sums due under a registered order shall, while the order G
is registered in the District Court, be made to the Registrat during
such hours and at such place as he may direct, and the Registrar shall
H H
send those payments by post to the court which made the order or to
such other person or authority as that court or the Chief Executive
I may from time to time direct. I
(2) Where it appears to the Registrar to whom payments under any
J J
maintenance order are made by virtue of paragraph (1) that any sums
payable under the order are in arrear he may and, if such sums are in
K arrear to an amount equal to four times the sum payable weekly K
under the order, he shall, whether the person for whose benefit the
payment should have been made requests him to do so or not (my
L emphasis), proceed in his office and title of Registrar for the recovery L
of those sums, unless it appears to him that it is unreasonable in the
M
circumstances to do so.” M
N The Setting Aside Application (“SA Summons”) N
O O
12. The reliefs sought under the terms of the SA Summons, apart
P from costs, are :- P
Q Q
“1. The Judgment Summons filed on 22 May 2012 (“the
Judgment Summons”) shall be set aside on the
R R
following grounds :
S S
(a) The Registrar does not have the jurisdiction to take
T
out the Judgment Summons pursuant to the T
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A A
Maintenance Orders (Reciprocal Enforcement)
B Ordinance, Cap.188; and B
C (b) The Judgment Summons is irregular as it is not C
brought under any particular Rule of the District
D Court.” D
E E
13. Following the hearing on 20 July 2015, Counsel for the
F Respondent provides supplemental submissions as to the nature of F
Judgment Summons being ‘criminal in nature’ for the purposes of Articles
G G
10 and 11 of the Bill of Rights Ordinance, Cap.383 (“BORO”) and with
H reference to the cases of Koon Wing Yee and Insider Dealing Tribunal H
(2008) 11 HKCFAR 170; Gray v. Servino [2001] 3 HKLRD 842; Mubarak
I I
v. Mubarak [2001] 1 FLR 693; CYM v. YML [2013] 1 HKLRD 701; and 2
J decisions of the European Court of Human Rights in Engel v. The J
Netherlands [No.1] (1976) 1 EHRR 647 and Funke v. France (1993) 16
K K
EHRR 297.
L L
14. On the other hand, the DOJ whose stance being neutral to the
M M
Respondent’s application, assisted this Court and provided its Second
N Legal Submissions on 31 August 2015 with reference to the recent English N
Court of Appeal case of Prest v. Prest [2015] EWCA Civ 714 (dated 7
O O
July 2015) highlighting the development of the judgment summons
P procedure in England and Wales after Mubarak. Submissions have also P
Q
been made as to the procedural aspects under Orders 48 and 49B of the Q
Rules of the District Court (“RDC”) in Hong Kong and also Order 90A as
R R
to the judgment summons procedure.
S S
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A A
15. At today’s hearing, Counsel for the Respondent further
B B
produced a ‘Speaking Note’ making submissions that the Judgment
C Summons should be set aside for the following reasons :- C
D D
- There is no party seeking relief;
E - The Judgment Summons has been abandoned; E
- The Judgment Summons is irregular; and
F F
- No evidence of the Respondent’s means has been provided.
G G
The Respondent’s stance
H H
I 16. Towards the end of this hearing, this Court obtained I
J
confirmation from Counsel Mr. Marwah that the Respondent is not J
challenging the validity of the Canadian Court Order. The Respondent
K K
for obvious reasons did not provide further instructions to Counsel to
L
answer this Court’s second question as to whether the Canadian Court L
Order had now been complied with.
M M
N 17. At today’s hearing, this Court also obtained confirmation from N
Counsel for the Respondent that no amendment would be made to the 2
O O
grounds relied upon for the setting aside application as stated in paragraphs
P 1(a) and (b) in the SA Summons. P
Q Q
18. The Respondent, with the benefit of legal advice, took no
R issue as to the process of registration of the Canadian Court Order here in R
Hong Kong under Section 7 of the MOREO, which is a prerequisite
S S
requirement for commencement of enforcement proceedings under the
T MOREO. The Respondent also took no issue as to those supporting T
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A A
evidence adduced by the Registrar by way of Affirmation filed herein and
B B
the attached exhibits thereto, including but not limited to, the fact that at
C the material time there were arrears of maintenance accrued under the C
Canadian Court Order which were due and payable by him to the other
D D
party, namely, YPC also known as CL, that is the Payee.
E E
19. Thus and as I see it, the Respondent’s stance is simply to
F F
challenge :-
G G
(a) the jurisdictional aspect for the Registrar to take up
H H
enforcement proceedings for YPC also known as CL,
I namely, the Payee by way of Judgment Summons (“the I
J
Jurisdictional Challenge”); and J
K K
(b) the regularity of the Judgment Summons enforcement
L
procedure in Hong Kong since such process, in light of the L
case of Mubarak in England and Wales and the subsequent
M M
amendment of the English Family Practice Rules on
N judgment summons, had been rendered irregular for N
infringement of the Hong Kong Bill of Rights Ordinance,
O O
Cap.383 (“the Regularity Challenge”) .
P P
The Court’s Views
Q Q
R (a) The Jurisdictional Challenge R
S S
20. The Respondent is contending that since the Registrar had
T agreed that he is not a party to the Judgment Summons, not the legal T
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A A
representative of the Payee, not advocating for either party in these
B B
proceedings and is taking a neutral stance; accordingly, it does not satisfy
C Rule 8(2) of the MORER which requires him or her to ‘proceed in his C
office and title of Registrar’ of which had not so happened in the present
D D
proceedings. It is submitted by the Respondent that this is a fundamental
E and irreparable defect in these proceedings. E
F F
21. Moreover, the fact that the Registrar represented by the DOJ
G had obtained leave to be excused from attending the subsequent G
proceedings and the hearing of the SA Summons, amounted to an express
H H
repudiation to the Respondent’s application and also a waiver of any
I entitlement to relief. I
J J
22. In my view, it is trite that there could be joinder of parties
K K
where separate actions are being brought by or against two or more
L
persons claiming reliefs in respect of or arising out of the same set of facts; L
and also that some common question of law or fact are involved. Order
M M
15 rule 4 of the Hong Kong Civil Procedure 2016 (“HKCP”) provides for
N “Joinder of Parties”. At paragraph 15/4/1 of the HKCP at page 309 N
where it said :-
O O
P
“The ‘relief’ in respect of which parties may be joined must be relief P
arising out of the same set of circumstances or circumstances involving
a common question of law or fact……
Q Q
If the above conditions are met, the aim of the court would be to strive
to achieve an efficient resolution of common factual issues in a single
R R
trial, rather than to wait to see if one set of proceedings would catch up
with another. This objective could be achieved, with minimal delay, if
S the judge seized of the case made appropriate directions and retained a S
firm control over the progress of the proceedings. This would avoid
inconsistent findings, save costs and not waste judicial time.”
T T
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A A
23. Further, my view as to the true interpretation of Rule 8(2) of
B B
the MORER is that it sets out the administrative role of the Registrar, in so
C far as recovery of maintenance due under a registered order (as required by C
Section 7 of the MOROR) is concerned, rather than any pre-requisite
D D
provision for the Registrar to be named or joined as a party in order to
E proceed with the reciprocal recovery or any enforcement proceedings. E
Those words ‘proceed in his office and title of Registrar’ should not be
F F
read in isolation or disjunctive from the words ‘for the recovery of those
G sums’ which immediately follow. Moreover, there is no ‘reliefs’ claimed G
by the Registrar in the recovery process or is there any common question
H H
of law or fact entitling the Registrar to be joined or named as a party in the
I enforcement proceedings. The Registrar is, for enforcement process I
J
under the MOREO, perfectly entitled to proceed with the enforcement on J
behalf of the Judgment Creditor (which is the Payer in these proceedings)
K K
without the Registrar’s name being added or subrogated for the Payee.
L L
24. Any contention that the reciprocal enforcement proceedings
M M
under the MOREO require the Registrar to be named or joined before he or
N she could proceed with enforcement, in my decision, must fail for the N
following reasons :-
O O
P (a) The Registrar is not an interested party, or indeed a P
party or privy, to the subject judgment or order being
registered under the MOREO in respect of which
Q Q
enforcement is being undertaken;
R R
(b) The judgment or order so registered is already an
adjudication by the foreign court in the reciprocating
S country in respect of the parties’ rights, claims and reliefs. S
There is simply no ‘reliefs’ claimed by the Registrar
T which require the Hong Kong court to adjudicate. T
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A A
25. Section 7 of the MOREO is the statutory provision which
B B
confers jurisdiction upon the Registrar in appropriate cases to take up
C enforcement of maintenance orders obtained in the reciprocating countries. C
This is in essence an administrative task to compel implementation rather
D D
than a judicial intervention to seek reliefs. To give the words ‘proceed in
E his office and title of Registrar’ a meaning equate to ‘taking over the E
proceedings in the Registrar’s name’ is, in my view, unorthodox. Thus, I
F F
do not accept there is any fundamental and irreparable defect submitted by
G Counsel Mr. Marwah for the Respondent. G
H H
26. The other contention as to repudiation and waiver of
I entitlement to relief by reason of the Registrar or DOJ’s excusal from I
J
attendance is also misconceived. The Respondent’s case here involves J
legal and procedural argument as to the enforcement process rather than
K K
any dispute as to facts between the parties privy to the Canadian Court
L
Order. The Respondent has also confirmed that he does not contest the L
validity of the Canadian Court Order. Given the fact that the Registrar’s
M M
role being administrative and empowered by statute to recover arrears of
N maintenance, there is no question of repudiation and/or waiver which N
would only arise or emerge where there are disputes as to facts and claims
O O
for reliefs. Plainly and at the risk of repeating myself, there is no ‘claim’
P of any reliefs by the Registrar in the enforcement process under the P
MOREO.
Q Q
R 27. For the above reasons, the Respondent’s Jurisdictional R
Challenge must fail.
S S
T (b) The Regularity Challenge T
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A A
28. The Regularity Challenge is slightly more complicated than
B B
the Jurisdictional Challenge as it involves consideration of a wider
C spectrum of the common law and procedural rules. C
D D
29. Mr. Marwah in his Supplemental Submissions, in addition to
E his earlier Submissions on the technicality and procedural aspects for the E
Registrar to take out the Judgment Summons, raised the question as to the
F F
‘criminality nature’ of the Judgment Summons, the test for criminal
G proceedings and also the nature and severity of penalty. Further reference G
was made to the common law privilege against self-incrimination in
H H
determination of criminal charges enshrined by Articles 10 and 11 of the
I BORO. I
J J
30. In my view, the Respondent’s contention that the appropriate
K K
party to enforce the Canadian Court Order should be the Wife (i.e. the
L
Payee) and not the Registrar missed the point. The present enforcement L
process was brought under the reciprocal enforcement regime codified by
M M
the MOREO. It is not an enforcement process under the domestic law of
N the reciprocating country, namely, British Columbia, Canada, where the N
Canadian Court Order was granted. I believe the rationale and objective
O O
behind the MOREO is for enforcement in Hong Kong of maintenance
P orders obtained in foreign jurisdictions of the reciprocating countries P
without the need of the party to whom maintenance was due to pursue the
Q Q
fruits of the maintenance order in a jurisdiction and legal system
R unfamiliar to him or her. Any contention as to the ‘identity’ of the party R
pursuing under the MOREO should be the party privy to the order being
S S
enforced completely missed the point.
T T
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A A
Was the Judgment Summons irregular ?
B B
C 31. In the case of CYM v. YML [2013] 1 HKLRD 70, Hon Lam JA C
reminded family law practitioners as to the draconian nature of
D D
enforcement for arrears of maintenance by way of judgment summons.
E At paragraphs 51 and 52 of the Judgment, his Lordship said :- E
F F
“51. It has to be remembered that a judgment summons is a draconian
procedure. It may result in the imprisonment of the judgment
G G
debtor. We understand that the judgment summons procedure
has often been adopted by family practitioners in the
H enforcement of arrears. Unfortunately, there is a tendency of H
using this as the primary means of enforcement without
considering whether less draconian means are more appropriate.
I When I pointed out in the course of argument that it is possible I
to seek a court order or payment of a judgment sum by a certain
J date without using a judgment summons, Ms Yip’s initial J
reaction was that this could not be done. When she was
referred to O.45 r.6 of the Rules of the High Court (Cap.4A,
K Sub.Leg.), counsel agreed this could be done. In my view, like K
committal proceedings in other types of civil litigation, judgment
summons should be a last resort. In cases where the parties
L L
have a genuine bona fide dispute about the quantum of an item
under an order for payment, such disputes should be resolved by
M a summons taken out under O.45 r.6 instead of a judgment M
summons. Likewise, in cases where there is a genuine bona
fide dispute on the judgment debtor’s ability to pay (and very
N often such debtor would take out an application for variation), N
those representing a judgment creditor should reflect on the
O appropriateness of the continuation of the judgment summons O
procedure after seeing the evidence of the judgment debtor.
Given the penal consequence, like a committal for civil
P contempt, the judgment creditor has to satisfy the court beyond P
reasonable doubt that the judgment debtor has the means to pay
the judgment debt, see Kao, Lee & Yip v. Koo Hoi Yan (2009)
Q Q
12 HKCFAR 830. If a judgment creditor has no firm and
cogent evidential basis to discharge such onus, it would not be
R appropriate to proceed by way of judgment summons. R
52. The judgment summons procedure, as applied in Hong Kong at
S S
present, has been subject to successful challenge for
infringement of human rights in the United Kingdom : see
T Mubarak v. Mubarak [2001] 1 FLR 698. As a result, the rules T
under CCR O.28 were changed in England. Though this is not
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A A
the occasion for discussing at length the merits of a similar
B challenge in Hong Kong, I would point out that there are similar B
safeguards for human rights in Hong Kong in arts. 10 and 11 of
out Hong Kong Bill of Rights. Family practitioners should bear
C C
this in mind when they advise their clients to enforce a judgment
debt by judgment summons. In particular they should consider
D whether it is Bill of Rights-compliant to combine a process of D
examination of debtor with a process of commitment.”
E E
F 32. Counsel Mr. Marwah at paragraph 10 of his Skeleton F
Submissions made submissions that the application for judgment summons
G G
was fundamentally defective as the Registrar did not apply under either of
H the relevant rules, namely, O.48 or O.49B of the RDC. For the sake of H
completeness, O.48 is about ‘Examination of Judgment Debtor, Etc’ and
I I
O.49B is about ‘(HK) Execution and Enforcement of Judgment for
J Money by Imprisonment’. Both of them are different means of J
enforcement of judgments and orders in Hong Kong.
K K
L 33. Mr. Marwah had not, however, went further to explain how L
such contention could stand when the Respondent on the one hand contests
M M
the ‘locus standi’, so to speak, of the Registrar in taking up the
N enforcement process, but on the other hand asserting the Registrar did not N
apply under O.48 and O.49B and thereby the application for judgment
O O
summons was ‘fundamentally defective’ ? Nonetheless and oddly, Mr.
P Marwah then went on at paragraph 11 of his Skeleton Submissions made P
submissions that this is a breach of the rule that applications should include
Q Q
a ‘margin note’ identifying the relevant statutes and rules. Thus, this is
R also a breach of the Respondent’s rights to a fair hearing and to know the R
charges that he faces.
S S
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A A
34. With due respect, I cannot agree with Mr. Marwah on both
B B
contentions. The Rules of the District Court (“RDC”) and indeed also
C that of the High Court (“RHC”), are practice and procedural rules covering C
different types of applications in civil proceedings which, so far as they are
D D
applicable or with modifications, include family proceedings (see Rule 3
E of Matrimonial Causes Rules, Cap.179A (“MCR”)). O.48 and O.49B are E
two of them amongst the different means of enforcement of judgments and
F F
orders in all civil proceedings of the Court. Besides, there is the specific
G provision under Rule 87 of the MCR dealing with enforcement of G
maintenance orders obtained in the Family Court through the use of the
H H
Judgment Summons procedure.
I I
J
35. Rule 87 (2) of the MCR provides :- J
K “(2) Where an order has been made, the court may, on an application K
made ex parte by the judgment creditor, direct a summons to
L issue to the judgment debtor to attend before the court and be L
orally examined on the questions –
M (a) whether any and, if so, what debts are owing to the judgment M
debtor, and
N N
(b) whether the judgment debtor has any and if so, what other
property or means of satisfying the order,
O O
and the court may also order the judgment debtor to produce any books
or documents in the possession of the judgment debtor relevant to the
P questions aforesaid at the time and place appointed for examination.” P
Q Q
36. Mr. Marwah’s contention as to ‘fundamental defectiveness’
R and ‘marginal note’ seems to premise upon the comments of Hon Lam, JA R
in CYM v. YML. Given the fact that there are different means of
S S
enforcement of judgment and orders, Mr. Marwah had not been able to
T demonstrate how an application for judgment summons would be rendered T
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A A
‘fundamentally defective’ simply because the other options of enforcement
B B
under O.48 and O.49B of the RDC/RHC had not been chosen. This is, in
C my view, not even the ratio of Hon Lam JA in the CYM v. YML case C
(supra). Although his Lordship echoed concern over the judgment
D D
summons procedure in Hong Kong, when comparing with the amendment
E of the relevant rules on judgment summons in England and Wales after E
Mubarak, the fact remain is that the judgment summons procedure in Hong
F F
Kong is still in place and intact although practitioners were reminded by
G his Lordship to also consider less draconian means of enforcement before G
contemplating the judgment summons option.
H H
I 37. On a close scrutiny of Rule 87, it is a process for securing I
J
attendance of the judgment debtor to attend court for oral examination as J
to his means and, in appropriate cases, to produce books and documents
K K
relevant to his means and resources for repayment. It is, to a considerable
L
extent, akin to those examination processes under O.48 or O.49B of the L
RDC/RHC.
M M
N 38. The absence of ‘margin note’ does not, in my view, constitute N
any breach or infringement of the Respondent’s rights to a fair hearing
O O
provided that it is clear to him the subject matter of the complaint. Mr.
P Marwah had not been able to state with precision which rule he alleged to P
have been breached by the Registrar. Since the judgment summons
Q Q
procedure by itself is part of the civil proceedings, it is trite that non
R compliance with rules would not nullify the proceedings or any step taken R
in the proceedings, or any document, judgment or order therein (see O.2
S S
r.1(1) of HKCP 2016).
T T
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A A
39. As to the alleged breach of the Respondent’s rights to know
B B
the charges he faces, I am also not convinced by Mr. Marwah. In the
C prescribed format of Judgment Summons, there are preceding paragraphs C
at the beginning of it which sufficiently set out the terms of the Order in
D D
question which had been breached followed by details of the default or
E breaches complained of. There is no exception to the Judgment E
Summons issued in this case against the Respondent. Thus, the absence
F F
of any ‘margin note’ would not prejudice the Respondent in that he does
G not know what charges he was facing under the Judgment Summons G
process. Moreover, the prescribed form of Judgment Summons does not
H H
seem to require Rule 87 to be designated as a marginal note somewhere
I akin to the prescribed form of a usual summons. I
J J
40. Mr. Marwah in his ‘Speaking Note’ relied upon the case of Re
K K
M [1989] 2 HKLR 117. The submission made was that since judgment
L
summons is a penal process in which the judgment debtor is at risk of L
imprisonment, it is imperative that in such proceedings there should be
M M
strict compliance with the rules.
N N
41. The case of Re M is an appeal against an order of committal
O O
for contempt made under O.52 r.2(2) of the RDC. The non compliance in
P that case was that the application for leave was not accompanied by a P
separate Statement so required by the rule and also the order of committal
Q Q
did not conform to Form No.85 of Appendix A of the Rules of the
R Supreme Court in that it did not specify what the contempt was. R
S S
T T
U U
V V
由此
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A A
42. The nature and importance of the Statement under O.52 r.2(2)
B B
needs no elaboration and has been discussed at length in the Hong Kong
C Civil Procedure 2016, para 52/2/6, at page 1010 as follows :- C
D D
“The statement in support of the application is to be treated in a similar
manner as an indictment in criminal proceedings having regard to the
E penal nature of the sanctions for contempt. At the substantial hearing E
the applicant cannot (except with the leave of the court) rely on any
F grounds not stated in the originating summons, being grounds in F
respect of which leave for making the application for an order of
committal has been granted. The statement should state all the
G factual elements which, if proved, are sufficient to establish the G
contempt, but not the evidence in support. Great care therefore must
be exercised in drafting the statement……”
H H
I 43. The learned author went on to say at page 1010 :- I
J J
“The following should be included (r.2(2)) :
K K
(a) the name and the description of the applicant;
L L
(b) the name, the description and the address of the person sought to be
M committed….. M
N (c) the relief sought, i.e. an order for committal and/or fine (and/or N
sequestration if appropriate) and costs;
O O
(d) particulars of the order or the undertaking alleged to have been
P breached; P
Q (e) in case of civil contempt, the personal service thereof on the alleged Q
contemnor (see para 52/2/8) (if personal service is unnecessary for
some reason, the statement should state why : Chou Yi Feng –v-
R Chou Yi Chen., unrep. HCA No.4393 of 2001, November 23, 2002, R
[2002] HKEC 1437, Chung J., para 44);
S S
(f) how and in what manner is it alleged the order or undertaking has
T been breached, with sufficient particularity to enable the alleged T
contemnor to defend himself, ……….The test for the sufficiency of
U U
V V
由此
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A A
the statement is : ‘Does it give the person alleged to be in
B contempt enough information to enable him to meet the charge ?’ B
(Chiltern D.C. –v- Keane [1985] 1 WLR 619 CA at 622, per Sir John
Donaldson M.R.,……..;
C C
D (g) ………………………” D
E E
44. In my view, Re M is not analogous to the present case. For
F committal proceedings under O.52 of the RDC/RHC, the party initiating F
the committal proceedings would have to file a ‘Statement’ which, as a
G G
matter of law, is akin to an Indictment in criminal cases which the alleged
H contemnor has to face and answer (see LPK v. HSH [2012] 2 HKLRD H
1031). For judgment summons procedure under Rule 87 of the MCR, the
I I
creditor would have to seek leave to issue a summons to bring the debtor to
J attend court and be orally examined as to his means and, if appropriate, J
also to produce books or documents at the hearing. As said earlier, Mr.
K K
Marwah had not referred to any rule (my emphasis) in respect of which
L there was non compliance in the present Judgment Summons. To the L
contrary, the Judgment Summons was issued in strict compliance with the
M M
relevant rule, namely, Rule 87 of the MCR. The Praecipe and the
N Judgment Summons were not signed by the Payee personally (my N
emphasis) as Mr. Marwah had so submitted simply could not stand as a
O O
contention at all. Reason is that these reciprocal enforcement
P proceedings were brought by the Registrar in his official capacity on P
behalf of the Payee under the MOREO rather than by the Payee herself in
Q Q
her personal capacity. This follows without the need for further
R elaboration that the party signing would be the Registrar and not the Payee. R
S S
45. For the above reasons, I find there was no irregularity in
T respect of the Judgment Summons. T
U U
V V
由此
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A A
Criminal Nature of Judgment Summons
B B
C 46. The submission made was that the Judgment Summons C
proceedings are ‘criminal proceedings’ for the purposes of Articles 10 and
D D
11 of the BORO. The case of Koon Wing Yee v. Insider Dealing Tribunal
E [2008] 11 HKCFAR 170 was cited and the common law privilege against E
self-incrimination was referred to in Mr. Marwah’s Supplemental
F F
Submissions.
G G
47. The whole issue which the Respondent was trying to bring out,
H H
as I see it, is that whenever proceedings which carry punitive sanctions
I irrespective of whether they are civil or criminal by nature, it should not I
J
undermine one’s privilege against self-incrimination. J
K K
48. Referring to the case of Mubarak v. Mubarak (supra), the
L
English Court of Appeal had held that the previous process of judgment L
summons that had been practised was not compliant with the European
M M
Convention of Human Rights (“ECHR”). At paragraph 36 of the
N Judgment where Thorpe LJ said :- N
O O
“However, an application under the Act may originate in family
proceedings, it is clearly a procedure subjecting the respondent to the
P risk of the criminal sanction of imprisonment, and it seems to me P
manifest that Mr. Howard is correct in his submissions as to its proper
classification in terms of Convention law. The difficulties of adapting
Q the age-old Court 51 procedure to the arrival of the European Q
Convention for the Protection of Human Rights and Fundamental
R Freedoms 1950 are, it seems to me, considerable. As my Lord has R
pointed out during the course of argument, the procedure under the
Debtors Act 1869 essentially combines in one what might be said to be
S two distinct exercises, namely the examination of means, for which the S
husband respondent may well be a compellable witness; and the
determination of whether he is in default and whether or not the
T T
sanction should be applies, as to which the husband is certainly not a
U U
V V
由此
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A A
compellable witness.”
B B
C C
49. Following the decision of the English Court of Appeal in
D Mubarak, there were amendments to the Family Procedure Rules 2010 D
(“FPR”) in England and Wales. Rule 33.14(1) now provides that no
E E
person may be committed on an application for a judgment summons
F unless the judgment creditor proves that the debtor :- F
G G
“(i) has, or has had, since the date of this order the means to pay the
sum in respect of which the debtor has made default; and
H H
(ii) has refused or neglected, or refuses or neglects, to pay that sum.”
I I
50. Further, Rule 33.14(2) now made it explicit that the debtor
J J
may not be compelled to give evidence.
K K
51. The English Court of Appeal in the case of Prest v. Prest
L L
[2015] EWCA Civ 714, which is a recent decision few months ago on 7
M July 2015, where Lord Justice McFarlane discussed at length the common M
law development of the judgment summons procedure after Mubarak :-
N N
O “53. In the course of submissions we were taken to a number of O
authorities relating to the use of an application for a judgment
summons under the 1869 Act, s 5, in matrimonial proceedings.
P As is well known, this court in the case of Mubarak v. Mubarak P
[2001] 1 FLR 698 identified the difficulties involved in adapting
Q the judgment summons procedure to the requirements of the Q
European Convention for the Protection of Human Rights and
Fundamental Freedoms 1950. Notwithstanding the criminal
R nature of the proceedings, the judgment summons process at that R
time made no reference to the criminal standard of proof,
required individuals to incriminate themselves, placed the burden
S S
of proof on the person facing committal and seemingly muddled
the separate processes of undertaking a means enquiry and of
T committal proceedings. In consequence the court in Mubarak T
predicted that the practical effect of these difficulties would be to
U U
V V
由此
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A A
render the Debtors Act 1869 largely obsolete as a means of
B enforcement in matrimonial proceedings. B
54. As a consequence of the decision in Mubarak the relevant court
C C
rules were amended and now appear in the form set out in FRP
2010, r 33.14 (see paragraph 11 above). Counsel have drawn
D attention to three authorities relating to the judgment summons D
process subsequent to these amendments : Zuk v. Zuk [2012]
EWCA Civ 1871; [2013] 2 FLR 1466; Bhura v. Bhura [2012]
E EWHC 3633 (Fam); [2013] 2 FLR 44; and Mohan v. Mohan E
[2013] EWCA Civ 586; [2014] 1 FLR 717. Each of these
F authorities contains dicta which, with respect, I consider should F
be treated with a substantial degree of caution. The relevant
passages are, firstly, in Zuk at paragraph 19 where Thorpe LJ
G said : G
“19. However, all that said, where the order which the
H H
creditor seeks to enforce is a lump sum order, the judgment
creditor starts from the strong position that the order itself
I establishes, either expressly or implicitly, that the payer had the I
means to pay at the date the order was made. As my Lord,
Patten LJ, put it in argument, perhaps at that stage the evidential
J J
burden passes to the debtor, whilst not of course undermining
the obligation on the creditor to discharge the burden of proof.
K Plainly in a case where there has been some major and K
unforeseen financial development which removes from the payer
the ability to pay which he had at the date of order, the
L ordinary expectation is that he would be the applicant to the L
court seeking the variation of the order either under the limited
M
powers of the court to revisit in the light of some volcanic M
development or perhaps simply to seek some relief by way of
deferment of the date of payment or perhaps future payment by
N instalments. So although of course the rule is and must remain N
that the burden of proof rests on the applicant, I think in a case
such as this that burden is lightly discharged and an evidential
O O
burden may switch to the debtor.”
P In Bhura at paragraph 13, where Mostyn J said : P
“Stated shortly it seems to me that the applicable principles are
Q these : Q
R (i)…… R
(ii)…..
(iii)….
S (iv) It is essential that the applicant adduces sufficient S
evidence to establish at least a case to answer. Generally
speaking, this need not be an elaborate exercise. Proof of the
T T
order and of non-payment will likely give rise to an inference
U U
V V
由此
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A A
which establishes the case to answer.
B (v)….. B
(vi) If the applicant establishes a case to answer an
evidential burden shifts to the respondent to answer it. If he
C C
fails to discharge that evidential burden then the terms of s 5 will
be found proved against him or her to the requisite standard.”
D D
And in Mohan, at paragraph 45 where Thorpe LJ said :
E “……the wife’s advisers might have….concluded that….the only E
effective remedy was the immediate issue of a summons under
F the Debtors Act. Very little evidence would have been F
necessary from the wife in support…The reality is that if he
attended [the summons hearing], although not compellable, he
G would have been obliged to proffer explanation and excuse.” G
55. The collective professional experience of Thorpe LJ and Mostyn
H H
J in these matters makes me most hesitant to express a contrary
view, but my reason for advising caution concerning this set of
I observations is that they each suggest that, in the course of the I
criminal process that is the hearing of a judgment summons, it is
simply sufficient to rely upon findings as a wealth made on the
J J
civil standard of proof in the original proceedings and that those
findings, coupled with proof of non-payment, is sufficient to
K establish a ‘burden’ on the respondent which can only be K
discharged if he or she enters the witness box and proffers a
credible explanation. The facts of each case will differ, and the
L aim of Thorpe LJ and Mostyn J in envisaging a process which is L
straightforward and not onerous to the applicant is laudable, but
M
at the end of the day this is a process which may result in the M
respondent serving a term of imprisonment and the court must be
clear as to the following requirements, namely that :
N N
(a) The fact that the respondent has or has had, since the date of
the order or judgment, the means to pay the sum due must be
O O
proved to the criminal standard of proof;
P (b) The fact that the respondent has refused or neglected, or P
refuses or neglects, to pay the sum due must also be proved
to the criminal standard;
Q Q
(c) The burden of proof is at all times on the applicant; and
R R
(d) The respondent cannot be compelled to give evidence.”
S S
52. Having said, Order 90A of the RDC (Proceedings
T T
Concerning Judgment Summons) in Hong Kong sets out the definition
U U
V V
由此
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A A
of ‘judgment summons’ (O.90A r.2(1)), the procedural aspects of such
B B
process (O.90A r.2(2) to (4)) and the powers available to the Court (i)
C upon hearing of the judgment summons (O.90A r.2(5)) and; (ii) after an C
order of commitment was made (O.90A r.2(6)). The provision which
D D
provides the Court with the power to make an order of commitment is
E under O.90A r.2(5)(c) where it said :- E
F F
“(5) On the hearing of the judgment summons the judge may (my
emphasis) -
G G
(c) where the judgment debtor, having been ordered under
H subparagraph (b) to attend at a specified time on a specified H
day, fails to do so, or where the judgment debtor attends, but
I fails to show cause why an order of commitment should not I
be made against him, make an order for the commitment of
the judgment debtor.”
J J
53. In my view, the discretionary powers of the court to make an
K K
order of commitment coupled with the power to, in appropriate cases,
L suspend execution of the order of commitment on terms, if such an order L
M
was made, have had a neutralizing effect for a civil process of enforcement M
to carry with it somewhat akin to criminal sanction or penalty of
N N
imprisonment. Bearing in mind the serious consequences which might
O
follow, it has long been the Court’s views that judgment summons is only O
a remedy of last resort.
P P
Q 54. Back in 2002 in the case of X v. Y (FCDJ 536/1997), His Q
Honour Judge Gill said :-
R R
S
“26. To incarcerate a judgment debtor is a remedy of last resort. As S
Nazareth NPJ said in Gray v. Servino, FACV 8 of 2001, ‘In family
T cases it should be the very last resort.’. I take that to mean reserved T
U U
V V
由此
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A A
for the debtor who has shown contumelious disregard for his
B B
court-ordered obligations to those dependent on him.”
C C
55. Thirteen years later in the recent case of BT v. YHK (FCMC
D D
943/2011), date of judgment : 29 May 2015, Her Honour Melloy sets out
E the law on judgment summons, inter alia, as follows :- E
F F
G “The law on Judgment Summonses G
H H
7. Turning next to the law on judgment summonses. The
judgment debtor is required to show cause. He has to show the court
I I
why he should not be committed to prison for contempt. The court is
J to ascertain whether he had the ability to make the payments ordered J
and whether he has wilfully failed to do so (reference Ellis v. Ellis
K [2005] EWCA Civ 853). The judgment creditor needs to prove this K
beyond reasonable doubt. Mubarak v. Mubarak [2007] 1 WLR 271 is
L L
the case in question. Further, it is accepted that a judgment summons
M
like all proceedings for contempt is a remedy of last resort and, M
particularly so, in the Family Court, reference CYM v. TML [2013] 1
N HKLRD 701, the Court of Appeal decision. N
O O
8. The court has the power to commit a judgment debtor to prison
certainly for up to 3 months and, arguably, for longer, or to commit
P P
suspended upon payment of the outstanding debt, either in its entirety or
Q by instalments, or to adjourn sine die with liberty to restore. Q
R 9. When considering the possibility of imprisonment, the court is R
bound by the claims made in the original judgment summonses. In
S S
other words, the court looks at the amount that the judgment creditor
says it is owed at that date and the judgment debtor is put to strict proof
T T
in relation to those amounts. If the court is considering the possibility
U U
V V
由此
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A A
of making a new order in which the judgment debtor is, for example,
B B
asked to pay by instalments, then it is possible to calculate the
outstanding amount due up-to-date or to remit or suspend or in some
C C
other way to vary the amount owed.
D D
10. …………”
E E
F F
G G
56. Whilst amendment somewhat similar to those in the England
H and Wales has yet to be seen in our rules on the judgment summons H
process of enforcement, I find no basis for the Court not to accept such
I I
process of enforcement if they are properly taken out under the existing
J rules and procedure. J
K K
57. In my view, if there are any potential problems on whatever
L issues arising from the legislation, it could only be tackled by legislative L
amendments rather than by judicial restraint. As I said earlier, the Bill of
M M
Rights compliant issue only came about from the obiter dicta of Hon Lam
N VP in CYM v. YML (supra). Through the use of discretionary powers of N
the Courts under the judgment summons procedure ((O.90A r.2(5) and (6)),
O O
along with the 4 safeguards set forth by Lord Justice McFarlane in Prest v.
P Prest (supra), I believe any potential problems arising could have been P
resolved, to the very least temporarily, and not for the Court to put a
Q Q
complete halt to the judgment summons process of enforcement for reason
R of ‘irregularity’ as the Respondent now submitted. R
S S
58. The DOJ went further in their Second Legal Submissions at
T paragraph 11 made submission that the process of committal under Order T
U U
V V
由此
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A A
90A rule 2(5)(c) could be procedurally separated from the other provisions
B B
of Order 90A, of which are essentially civil in nature and that the
C applicable standard of proof for those other provisions are the civil one. C
At this stage and for this Judgment, I do not intend to venture into the
D D
severability of O.90A rule 2(5)(c) from other provisions of Order 90A for
E the judgment summons enforcement process nor do I have to go into E
details as to standard of proof. Both English and Hong Kong cases have
F F
already sufficiently set out the standard of proof in judgment summons
G process required of the judgment creditor is that of beyond reasonable G
doubt. What really needs to be tackled is the risk of self incrimination;
H H
possibly embraced within the existing rules and procedure of the judgment
I summons process; in respect of which could only be fully resolved through I
J
legislative process rather than judicial intervention or restraint. J
K K
59. For all the above reasons, I find the Respondent’s Regularity
L
Challenge also fails. L
M M
Decision of the Court
N N
60. In my decision, the Respondent’s SA Summons must fail and
O O
be dismissed.
P P
Costs
Q Q
R 61. Taking into account the neutral stance of the DOJ in respect of R
the Respondent’s SA Summons, it is fair and reasonable not to make any
S S
costs order.
T T
U U
V V
由此
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A A
62. I will so order accordingly.
B B
C Hearing of the Judgment Summons C
D D
63. Following this decision, I now direct the Judgment Summons
E dated 22 May 2012 be restored for a call over hearing on 21st March 2016 E
at 2:30 p.m..
F F
G Orders G
H H
64. I now make the following Orders :-
I I
J
(a) The Respondent’s (Payer’s) Summons dated 14 July 2015 J
be dismissed;
K K
L
(b) The Judgment Summons dated 22 May 2012 be restored L
for hearing on 21st March 2016 at 2:30 p.m.;
M M
(c) There be no Order as to costs of the Respondent’s (Payer’s)
N N
Summons dated 14 July 2015 including any costs reserved.
O O
65. Last but not least, I wish to express my gratitude to Counsel
P P
for their assistance in this case.
Q Q
R R
(George Own)
S
Deputy District Judge S
T T
U U
V V
由此
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A A
Department of Justice for the Registrar, on behalf of the Petitioner
B (Judgment Creditor) under the Maintenance Order (Reciprocal B
Enforcement) Ordinance, Cap.188
C C
Mr Shaphan Marwah instructed by Messrs. Gall, Solicitors for the
D Respondent (Judgment Debtor) D
E E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
由此
A A
FCMP 103 / 2012
B B
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D MISCELLANEOUS PROCEEDINGS NO. 103 OF 2012 D
E ---------------------------- E
BETWEEN
F F
YPC also known as CL Applicant
(the Payee)
G G
H H
and
I I
SSHL Respondent
J (the Payer) J
------------------------
K K
L L
Coram: Deputy District Judge G. Own in Chambers (Not Open to Public)
M M
th
Date of Hearing: 11 November 2015
N N
Date of Judgment: 4th December 2015
O O
-------------------------
P P
JUDGMENT
Q (Judgment Summons : Setting Aside) Q
-------------------------
R R
S S
T T
U U
V V
由此
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A A
Introduction
B B
C 1. This is the Respondent’s (the Payer’s) Summons dated 14 July C
2015 (“SA Summons”) for setting aside a Judgment Summons dated 22
D D
May 2012 (“Judgment Summons”). This SA Summons was only issued
E and filed in the morning of 20 July 2015 (which was the date scheduled for E
hearing of the Judgment Summons). This SA Summons was listed for
F F
hearing on 14 August 2015 with 30 minutes reserved. The SA Summons
G was served on the Department of Justice (“DOJ”) who acted for the G
Registrar of the District Court (“the Registrar”).
H H
I 2. At the hearing of the Judgment Summons, the Respondent was I
J
legally represented and Counsel Mr. Shaphan Marwah was instructed to J
appear. Counsel submitted the Judgment Summons would be opposed.
K K
In light of the SA Summons having been filed and served, the DOJ who had
L
already filed its legal submissions and authorities on 17 July 2015 before L
they were properly served with the SA Summons, agreed to have the
M M
Judgment Summons adjourned pending determination of the SA Summons.
N Leave was also sought by the DOJ and was granted by this Court for the N
Registrar to be excused from hearings in the subsequent proceedings,
O O
including the hearing(s) of the SA Summons.
P P
3. With the parties’ consent that a 2-hour hearing may be
Q Q
required, the hearing originally scheduled for the SA Summons on 14
R August 2015 was vacated and re-fixed to 11 November 2015 at 10:30 a.m. R
S S
T T
U U
V V
由此
- 3 -
A A
Historical Background
B B
C 4. By an Order granted by the Supreme Court of British C
Columbia on 26 October 2007 (“the Canadian Order”), the Respondent
D D
was ordered to pay maintenance for 4 Children in the amount of
E CAD$2,000 per month commencing 1st July 2005 and continuing on the 1st E
day of each and every month for so long as the Children are “children of
F F
the marriage” as defined in the Divorce Act.
G G
5. There had been attempt by the Respondent to seek variation of
H H
the Canadian Court Order in the Vancouver Supreme Court and suspension
I of enforcement action until conclusion of such variation proceedings in I
J
Canada. J
K K
6. As the Respondent had not complied with the Default Hearing
L
demands within the Family Maintenance Enforcement Program (“FMEP”) L
in Canada, the Registrar was requested by the FMEP on 20 October 2011
M M
to remove any enforcement suspension and commence necessary legal
N action against the Respondent. N
O O
7. Further matters that had emanated since the Canadian Court
P Order was granted until 20 October 2011 were set out in the Affirmation of P
Clement Lee Hing Nin, the then Temporary Registrar of this Court (as he
Q Q
then was) dated 30 April 2012, which I do not intend to repeat here save
R and except only when necessary for this Judgment. R
S S
T T
U U
V V
由此
- 4 -
A A
The Law
B B
C 8. These proceedings were commenced by the Registrar pursuant C
to the Maintenance Orders (Reciprocal Enforcement) Ordinance,
D D
Cap.188 (“the MOREO”) to enforce payment on behalf of the Applicant
E (“the Payee”). E
F F
9. Section 7 of the MOREO provides :-
G G
“Registration in Hong Kong of maintenance order made in
H reciprocating country H
I (1) This section applies to a maintenance order, whether before or after I
the commencement of this Ordinance, by a court in a reciprocating
J country, including such an order made by such a court which has J
been confirmed by a court in another reciprocating country, but
excluding a provisional order which has not been confirmed.
K K
(2) Where a certified copy of an order to which this section applies is
L received by the Chief Executive from the responsible authority in a L
reciprocating country, and it appears to the Chief Executive that the
payer under the order is residing in Hong Kong, he shall send the
M M
copy of the order to the Registrar of the District Court.
N (3) Where the Registrar receives from the Chief Executive a certified N
copy of an order to which this section applies, he shall, subject to
subsection (4), register the order in the court in the prescribed
O manner. O
P (4) Before registering an order under this section the Registrar shall take P
such steps as he thinks fit for the purpose of ascertaining whether the
payer under the order is residing in Hong Kong, and if after taking
Q those steps he is satisfied that the payer is not so residing he shall Q
return the certified copy of the order to the Chief Executive with a
R
statement giving such information as he possesses as to the R
whereabouts of the payer.”
S S
T T
U U
V V
由此
- 5 -
A A
10. Section 9 of the MOREO provides :-
B B
C “Enforcement of maintenance order registered in Hong Kong C
D D
(1) A registered order may be enforced in Hong Kong as if it had been
made by the District Court and as if that court had had jurisdiction to
E make it, and proceedings for or with respect to the enforcement of E
any such order may be taken accordingly.
F F
(2) Any person for the time being under an obligation to make payments
in pursuance of a registered order shall give notice of any change of
G address to the Registrar of the District Court, and any person failing G
without reasonable excuse to give such a notice commits an offence
and is liable to a fine not exceeding $500.
H H
(3) (a) A sum ordered to be paid under a registered order shall be
I recoverable as a civil debt. I
(b) If an application is made to the District Court alleging that
J default has been made in paying a sum ordered to be paid under J
a registered order, the District Court may, if it considers the
circumstances require it, for the purpose of securing the presence
K K
of the person alleged to be in default, issue a warrant to arrest
him and bring him before the court, whether or not a summons
L has been issued previously. L
(4) On the hearing of an application for enforcement of a registered
M M
order, the District Court may remit the whole or any part of the
amount due under the order.
N N
(5) In any proceedings for or with respect to the enforcement of an order
which is for the time being registered in the District Court under this
O Ordinance a certificate of arrears sent to the Registrar shall be O
evidence of the facts stated therein.
P P
(6) Subject to subsection (7), sums of money payable under a registered
order shall be payable in accordance with the order as from the date
Q on which they are required to be paid under the provisions of the Q
order.
R R
(7) The District Court may, if it decides to confirm a provisional order
under section 8, direct that sums of money payable under the order
S shall be deemed to have been payable in accordance with the order as S
from the date on which they are required to be paid under the
provisions of the order or such later date as the District Court may
T specify, and subject to any such direction, a maintenance order T
registered under section 8 shall be treated as if it had been made in
U U
V V
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A A
the form in which it was confirmed and as if he had never been a
B provisional order.” B
C C
11. Moreover, the Maintenance Orders (Reciprocal
D
Enforcement) Rules, Cap.188A (“MORER”) provides, inter alia, as D
follows :-
E E
F
“Rule 8 : Method of payment of sums due under a provisional order F
G (1) Payment of sums due under a registered order shall, while the order G
is registered in the District Court, be made to the Registrat during
such hours and at such place as he may direct, and the Registrar shall
H H
send those payments by post to the court which made the order or to
such other person or authority as that court or the Chief Executive
I may from time to time direct. I
(2) Where it appears to the Registrar to whom payments under any
J J
maintenance order are made by virtue of paragraph (1) that any sums
payable under the order are in arrear he may and, if such sums are in
K arrear to an amount equal to four times the sum payable weekly K
under the order, he shall, whether the person for whose benefit the
payment should have been made requests him to do so or not (my
L emphasis), proceed in his office and title of Registrar for the recovery L
of those sums, unless it appears to him that it is unreasonable in the
M
circumstances to do so.” M
N The Setting Aside Application (“SA Summons”) N
O O
12. The reliefs sought under the terms of the SA Summons, apart
P from costs, are :- P
Q Q
“1. The Judgment Summons filed on 22 May 2012 (“the
Judgment Summons”) shall be set aside on the
R R
following grounds :
S S
(a) The Registrar does not have the jurisdiction to take
T
out the Judgment Summons pursuant to the T
U U
V V
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A A
Maintenance Orders (Reciprocal Enforcement)
B Ordinance, Cap.188; and B
C (b) The Judgment Summons is irregular as it is not C
brought under any particular Rule of the District
D Court.” D
E E
13. Following the hearing on 20 July 2015, Counsel for the
F Respondent provides supplemental submissions as to the nature of F
Judgment Summons being ‘criminal in nature’ for the purposes of Articles
G G
10 and 11 of the Bill of Rights Ordinance, Cap.383 (“BORO”) and with
H reference to the cases of Koon Wing Yee and Insider Dealing Tribunal H
(2008) 11 HKCFAR 170; Gray v. Servino [2001] 3 HKLRD 842; Mubarak
I I
v. Mubarak [2001] 1 FLR 693; CYM v. YML [2013] 1 HKLRD 701; and 2
J decisions of the European Court of Human Rights in Engel v. The J
Netherlands [No.1] (1976) 1 EHRR 647 and Funke v. France (1993) 16
K K
EHRR 297.
L L
14. On the other hand, the DOJ whose stance being neutral to the
M M
Respondent’s application, assisted this Court and provided its Second
N Legal Submissions on 31 August 2015 with reference to the recent English N
Court of Appeal case of Prest v. Prest [2015] EWCA Civ 714 (dated 7
O O
July 2015) highlighting the development of the judgment summons
P procedure in England and Wales after Mubarak. Submissions have also P
Q
been made as to the procedural aspects under Orders 48 and 49B of the Q
Rules of the District Court (“RDC”) in Hong Kong and also Order 90A as
R R
to the judgment summons procedure.
S S
T T
U U
V V
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A A
15. At today’s hearing, Counsel for the Respondent further
B B
produced a ‘Speaking Note’ making submissions that the Judgment
C Summons should be set aside for the following reasons :- C
D D
- There is no party seeking relief;
E - The Judgment Summons has been abandoned; E
- The Judgment Summons is irregular; and
F F
- No evidence of the Respondent’s means has been provided.
G G
The Respondent’s stance
H H
I 16. Towards the end of this hearing, this Court obtained I
J
confirmation from Counsel Mr. Marwah that the Respondent is not J
challenging the validity of the Canadian Court Order. The Respondent
K K
for obvious reasons did not provide further instructions to Counsel to
L
answer this Court’s second question as to whether the Canadian Court L
Order had now been complied with.
M M
N 17. At today’s hearing, this Court also obtained confirmation from N
Counsel for the Respondent that no amendment would be made to the 2
O O
grounds relied upon for the setting aside application as stated in paragraphs
P 1(a) and (b) in the SA Summons. P
Q Q
18. The Respondent, with the benefit of legal advice, took no
R issue as to the process of registration of the Canadian Court Order here in R
Hong Kong under Section 7 of the MOREO, which is a prerequisite
S S
requirement for commencement of enforcement proceedings under the
T MOREO. The Respondent also took no issue as to those supporting T
U U
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A A
evidence adduced by the Registrar by way of Affirmation filed herein and
B B
the attached exhibits thereto, including but not limited to, the fact that at
C the material time there were arrears of maintenance accrued under the C
Canadian Court Order which were due and payable by him to the other
D D
party, namely, YPC also known as CL, that is the Payee.
E E
19. Thus and as I see it, the Respondent’s stance is simply to
F F
challenge :-
G G
(a) the jurisdictional aspect for the Registrar to take up
H H
enforcement proceedings for YPC also known as CL,
I namely, the Payee by way of Judgment Summons (“the I
J
Jurisdictional Challenge”); and J
K K
(b) the regularity of the Judgment Summons enforcement
L
procedure in Hong Kong since such process, in light of the L
case of Mubarak in England and Wales and the subsequent
M M
amendment of the English Family Practice Rules on
N judgment summons, had been rendered irregular for N
infringement of the Hong Kong Bill of Rights Ordinance,
O O
Cap.383 (“the Regularity Challenge”) .
P P
The Court’s Views
Q Q
R (a) The Jurisdictional Challenge R
S S
20. The Respondent is contending that since the Registrar had
T agreed that he is not a party to the Judgment Summons, not the legal T
U U
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A A
representative of the Payee, not advocating for either party in these
B B
proceedings and is taking a neutral stance; accordingly, it does not satisfy
C Rule 8(2) of the MORER which requires him or her to ‘proceed in his C
office and title of Registrar’ of which had not so happened in the present
D D
proceedings. It is submitted by the Respondent that this is a fundamental
E and irreparable defect in these proceedings. E
F F
21. Moreover, the fact that the Registrar represented by the DOJ
G had obtained leave to be excused from attending the subsequent G
proceedings and the hearing of the SA Summons, amounted to an express
H H
repudiation to the Respondent’s application and also a waiver of any
I entitlement to relief. I
J J
22. In my view, it is trite that there could be joinder of parties
K K
where separate actions are being brought by or against two or more
L
persons claiming reliefs in respect of or arising out of the same set of facts; L
and also that some common question of law or fact are involved. Order
M M
15 rule 4 of the Hong Kong Civil Procedure 2016 (“HKCP”) provides for
N “Joinder of Parties”. At paragraph 15/4/1 of the HKCP at page 309 N
where it said :-
O O
P
“The ‘relief’ in respect of which parties may be joined must be relief P
arising out of the same set of circumstances or circumstances involving
a common question of law or fact……
Q Q
If the above conditions are met, the aim of the court would be to strive
to achieve an efficient resolution of common factual issues in a single
R R
trial, rather than to wait to see if one set of proceedings would catch up
with another. This objective could be achieved, with minimal delay, if
S the judge seized of the case made appropriate directions and retained a S
firm control over the progress of the proceedings. This would avoid
inconsistent findings, save costs and not waste judicial time.”
T T
U U
V V
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A A
23. Further, my view as to the true interpretation of Rule 8(2) of
B B
the MORER is that it sets out the administrative role of the Registrar, in so
C far as recovery of maintenance due under a registered order (as required by C
Section 7 of the MOROR) is concerned, rather than any pre-requisite
D D
provision for the Registrar to be named or joined as a party in order to
E proceed with the reciprocal recovery or any enforcement proceedings. E
Those words ‘proceed in his office and title of Registrar’ should not be
F F
read in isolation or disjunctive from the words ‘for the recovery of those
G sums’ which immediately follow. Moreover, there is no ‘reliefs’ claimed G
by the Registrar in the recovery process or is there any common question
H H
of law or fact entitling the Registrar to be joined or named as a party in the
I enforcement proceedings. The Registrar is, for enforcement process I
J
under the MOREO, perfectly entitled to proceed with the enforcement on J
behalf of the Judgment Creditor (which is the Payer in these proceedings)
K K
without the Registrar’s name being added or subrogated for the Payee.
L L
24. Any contention that the reciprocal enforcement proceedings
M M
under the MOREO require the Registrar to be named or joined before he or
N she could proceed with enforcement, in my decision, must fail for the N
following reasons :-
O O
P (a) The Registrar is not an interested party, or indeed a P
party or privy, to the subject judgment or order being
registered under the MOREO in respect of which
Q Q
enforcement is being undertaken;
R R
(b) The judgment or order so registered is already an
adjudication by the foreign court in the reciprocating
S country in respect of the parties’ rights, claims and reliefs. S
There is simply no ‘reliefs’ claimed by the Registrar
T which require the Hong Kong court to adjudicate. T
U U
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A A
25. Section 7 of the MOREO is the statutory provision which
B B
confers jurisdiction upon the Registrar in appropriate cases to take up
C enforcement of maintenance orders obtained in the reciprocating countries. C
This is in essence an administrative task to compel implementation rather
D D
than a judicial intervention to seek reliefs. To give the words ‘proceed in
E his office and title of Registrar’ a meaning equate to ‘taking over the E
proceedings in the Registrar’s name’ is, in my view, unorthodox. Thus, I
F F
do not accept there is any fundamental and irreparable defect submitted by
G Counsel Mr. Marwah for the Respondent. G
H H
26. The other contention as to repudiation and waiver of
I entitlement to relief by reason of the Registrar or DOJ’s excusal from I
J
attendance is also misconceived. The Respondent’s case here involves J
legal and procedural argument as to the enforcement process rather than
K K
any dispute as to facts between the parties privy to the Canadian Court
L
Order. The Respondent has also confirmed that he does not contest the L
validity of the Canadian Court Order. Given the fact that the Registrar’s
M M
role being administrative and empowered by statute to recover arrears of
N maintenance, there is no question of repudiation and/or waiver which N
would only arise or emerge where there are disputes as to facts and claims
O O
for reliefs. Plainly and at the risk of repeating myself, there is no ‘claim’
P of any reliefs by the Registrar in the enforcement process under the P
MOREO.
Q Q
R 27. For the above reasons, the Respondent’s Jurisdictional R
Challenge must fail.
S S
T (b) The Regularity Challenge T
U U
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A A
28. The Regularity Challenge is slightly more complicated than
B B
the Jurisdictional Challenge as it involves consideration of a wider
C spectrum of the common law and procedural rules. C
D D
29. Mr. Marwah in his Supplemental Submissions, in addition to
E his earlier Submissions on the technicality and procedural aspects for the E
Registrar to take out the Judgment Summons, raised the question as to the
F F
‘criminality nature’ of the Judgment Summons, the test for criminal
G proceedings and also the nature and severity of penalty. Further reference G
was made to the common law privilege against self-incrimination in
H H
determination of criminal charges enshrined by Articles 10 and 11 of the
I BORO. I
J J
30. In my view, the Respondent’s contention that the appropriate
K K
party to enforce the Canadian Court Order should be the Wife (i.e. the
L
Payee) and not the Registrar missed the point. The present enforcement L
process was brought under the reciprocal enforcement regime codified by
M M
the MOREO. It is not an enforcement process under the domestic law of
N the reciprocating country, namely, British Columbia, Canada, where the N
Canadian Court Order was granted. I believe the rationale and objective
O O
behind the MOREO is for enforcement in Hong Kong of maintenance
P orders obtained in foreign jurisdictions of the reciprocating countries P
without the need of the party to whom maintenance was due to pursue the
Q Q
fruits of the maintenance order in a jurisdiction and legal system
R unfamiliar to him or her. Any contention as to the ‘identity’ of the party R
pursuing under the MOREO should be the party privy to the order being
S S
enforced completely missed the point.
T T
U U
V V
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A A
Was the Judgment Summons irregular ?
B B
C 31. In the case of CYM v. YML [2013] 1 HKLRD 70, Hon Lam JA C
reminded family law practitioners as to the draconian nature of
D D
enforcement for arrears of maintenance by way of judgment summons.
E At paragraphs 51 and 52 of the Judgment, his Lordship said :- E
F F
“51. It has to be remembered that a judgment summons is a draconian
procedure. It may result in the imprisonment of the judgment
G G
debtor. We understand that the judgment summons procedure
has often been adopted by family practitioners in the
H enforcement of arrears. Unfortunately, there is a tendency of H
using this as the primary means of enforcement without
considering whether less draconian means are more appropriate.
I When I pointed out in the course of argument that it is possible I
to seek a court order or payment of a judgment sum by a certain
J date without using a judgment summons, Ms Yip’s initial J
reaction was that this could not be done. When she was
referred to O.45 r.6 of the Rules of the High Court (Cap.4A,
K Sub.Leg.), counsel agreed this could be done. In my view, like K
committal proceedings in other types of civil litigation, judgment
summons should be a last resort. In cases where the parties
L L
have a genuine bona fide dispute about the quantum of an item
under an order for payment, such disputes should be resolved by
M a summons taken out under O.45 r.6 instead of a judgment M
summons. Likewise, in cases where there is a genuine bona
fide dispute on the judgment debtor’s ability to pay (and very
N often such debtor would take out an application for variation), N
those representing a judgment creditor should reflect on the
O appropriateness of the continuation of the judgment summons O
procedure after seeing the evidence of the judgment debtor.
Given the penal consequence, like a committal for civil
P contempt, the judgment creditor has to satisfy the court beyond P
reasonable doubt that the judgment debtor has the means to pay
the judgment debt, see Kao, Lee & Yip v. Koo Hoi Yan (2009)
Q Q
12 HKCFAR 830. If a judgment creditor has no firm and
cogent evidential basis to discharge such onus, it would not be
R appropriate to proceed by way of judgment summons. R
52. The judgment summons procedure, as applied in Hong Kong at
S S
present, has been subject to successful challenge for
infringement of human rights in the United Kingdom : see
T Mubarak v. Mubarak [2001] 1 FLR 698. As a result, the rules T
under CCR O.28 were changed in England. Though this is not
U U
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A A
the occasion for discussing at length the merits of a similar
B challenge in Hong Kong, I would point out that there are similar B
safeguards for human rights in Hong Kong in arts. 10 and 11 of
out Hong Kong Bill of Rights. Family practitioners should bear
C C
this in mind when they advise their clients to enforce a judgment
debt by judgment summons. In particular they should consider
D whether it is Bill of Rights-compliant to combine a process of D
examination of debtor with a process of commitment.”
E E
F 32. Counsel Mr. Marwah at paragraph 10 of his Skeleton F
Submissions made submissions that the application for judgment summons
G G
was fundamentally defective as the Registrar did not apply under either of
H the relevant rules, namely, O.48 or O.49B of the RDC. For the sake of H
completeness, O.48 is about ‘Examination of Judgment Debtor, Etc’ and
I I
O.49B is about ‘(HK) Execution and Enforcement of Judgment for
J Money by Imprisonment’. Both of them are different means of J
enforcement of judgments and orders in Hong Kong.
K K
L 33. Mr. Marwah had not, however, went further to explain how L
such contention could stand when the Respondent on the one hand contests
M M
the ‘locus standi’, so to speak, of the Registrar in taking up the
N enforcement process, but on the other hand asserting the Registrar did not N
apply under O.48 and O.49B and thereby the application for judgment
O O
summons was ‘fundamentally defective’ ? Nonetheless and oddly, Mr.
P Marwah then went on at paragraph 11 of his Skeleton Submissions made P
submissions that this is a breach of the rule that applications should include
Q Q
a ‘margin note’ identifying the relevant statutes and rules. Thus, this is
R also a breach of the Respondent’s rights to a fair hearing and to know the R
charges that he faces.
S S
T T
U U
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A A
34. With due respect, I cannot agree with Mr. Marwah on both
B B
contentions. The Rules of the District Court (“RDC”) and indeed also
C that of the High Court (“RHC”), are practice and procedural rules covering C
different types of applications in civil proceedings which, so far as they are
D D
applicable or with modifications, include family proceedings (see Rule 3
E of Matrimonial Causes Rules, Cap.179A (“MCR”)). O.48 and O.49B are E
two of them amongst the different means of enforcement of judgments and
F F
orders in all civil proceedings of the Court. Besides, there is the specific
G provision under Rule 87 of the MCR dealing with enforcement of G
maintenance orders obtained in the Family Court through the use of the
H H
Judgment Summons procedure.
I I
J
35. Rule 87 (2) of the MCR provides :- J
K “(2) Where an order has been made, the court may, on an application K
made ex parte by the judgment creditor, direct a summons to
L issue to the judgment debtor to attend before the court and be L
orally examined on the questions –
M (a) whether any and, if so, what debts are owing to the judgment M
debtor, and
N N
(b) whether the judgment debtor has any and if so, what other
property or means of satisfying the order,
O O
and the court may also order the judgment debtor to produce any books
or documents in the possession of the judgment debtor relevant to the
P questions aforesaid at the time and place appointed for examination.” P
Q Q
36. Mr. Marwah’s contention as to ‘fundamental defectiveness’
R and ‘marginal note’ seems to premise upon the comments of Hon Lam, JA R
in CYM v. YML. Given the fact that there are different means of
S S
enforcement of judgment and orders, Mr. Marwah had not been able to
T demonstrate how an application for judgment summons would be rendered T
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A A
‘fundamentally defective’ simply because the other options of enforcement
B B
under O.48 and O.49B of the RDC/RHC had not been chosen. This is, in
C my view, not even the ratio of Hon Lam JA in the CYM v. YML case C
(supra). Although his Lordship echoed concern over the judgment
D D
summons procedure in Hong Kong, when comparing with the amendment
E of the relevant rules on judgment summons in England and Wales after E
Mubarak, the fact remain is that the judgment summons procedure in Hong
F F
Kong is still in place and intact although practitioners were reminded by
G his Lordship to also consider less draconian means of enforcement before G
contemplating the judgment summons option.
H H
I 37. On a close scrutiny of Rule 87, it is a process for securing I
J
attendance of the judgment debtor to attend court for oral examination as J
to his means and, in appropriate cases, to produce books and documents
K K
relevant to his means and resources for repayment. It is, to a considerable
L
extent, akin to those examination processes under O.48 or O.49B of the L
RDC/RHC.
M M
N 38. The absence of ‘margin note’ does not, in my view, constitute N
any breach or infringement of the Respondent’s rights to a fair hearing
O O
provided that it is clear to him the subject matter of the complaint. Mr.
P Marwah had not been able to state with precision which rule he alleged to P
have been breached by the Registrar. Since the judgment summons
Q Q
procedure by itself is part of the civil proceedings, it is trite that non
R compliance with rules would not nullify the proceedings or any step taken R
in the proceedings, or any document, judgment or order therein (see O.2
S S
r.1(1) of HKCP 2016).
T T
U U
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由此
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A A
39. As to the alleged breach of the Respondent’s rights to know
B B
the charges he faces, I am also not convinced by Mr. Marwah. In the
C prescribed format of Judgment Summons, there are preceding paragraphs C
at the beginning of it which sufficiently set out the terms of the Order in
D D
question which had been breached followed by details of the default or
E breaches complained of. There is no exception to the Judgment E
Summons issued in this case against the Respondent. Thus, the absence
F F
of any ‘margin note’ would not prejudice the Respondent in that he does
G not know what charges he was facing under the Judgment Summons G
process. Moreover, the prescribed form of Judgment Summons does not
H H
seem to require Rule 87 to be designated as a marginal note somewhere
I akin to the prescribed form of a usual summons. I
J J
40. Mr. Marwah in his ‘Speaking Note’ relied upon the case of Re
K K
M [1989] 2 HKLR 117. The submission made was that since judgment
L
summons is a penal process in which the judgment debtor is at risk of L
imprisonment, it is imperative that in such proceedings there should be
M M
strict compliance with the rules.
N N
41. The case of Re M is an appeal against an order of committal
O O
for contempt made under O.52 r.2(2) of the RDC. The non compliance in
P that case was that the application for leave was not accompanied by a P
separate Statement so required by the rule and also the order of committal
Q Q
did not conform to Form No.85 of Appendix A of the Rules of the
R Supreme Court in that it did not specify what the contempt was. R
S S
T T
U U
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由此
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A A
42. The nature and importance of the Statement under O.52 r.2(2)
B B
needs no elaboration and has been discussed at length in the Hong Kong
C Civil Procedure 2016, para 52/2/6, at page 1010 as follows :- C
D D
“The statement in support of the application is to be treated in a similar
manner as an indictment in criminal proceedings having regard to the
E penal nature of the sanctions for contempt. At the substantial hearing E
the applicant cannot (except with the leave of the court) rely on any
F grounds not stated in the originating summons, being grounds in F
respect of which leave for making the application for an order of
committal has been granted. The statement should state all the
G factual elements which, if proved, are sufficient to establish the G
contempt, but not the evidence in support. Great care therefore must
be exercised in drafting the statement……”
H H
I 43. The learned author went on to say at page 1010 :- I
J J
“The following should be included (r.2(2)) :
K K
(a) the name and the description of the applicant;
L L
(b) the name, the description and the address of the person sought to be
M committed….. M
N (c) the relief sought, i.e. an order for committal and/or fine (and/or N
sequestration if appropriate) and costs;
O O
(d) particulars of the order or the undertaking alleged to have been
P breached; P
Q (e) in case of civil contempt, the personal service thereof on the alleged Q
contemnor (see para 52/2/8) (if personal service is unnecessary for
some reason, the statement should state why : Chou Yi Feng –v-
R Chou Yi Chen., unrep. HCA No.4393 of 2001, November 23, 2002, R
[2002] HKEC 1437, Chung J., para 44);
S S
(f) how and in what manner is it alleged the order or undertaking has
T been breached, with sufficient particularity to enable the alleged T
contemnor to defend himself, ……….The test for the sufficiency of
U U
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A A
the statement is : ‘Does it give the person alleged to be in
B contempt enough information to enable him to meet the charge ?’ B
(Chiltern D.C. –v- Keane [1985] 1 WLR 619 CA at 622, per Sir John
Donaldson M.R.,……..;
C C
D (g) ………………………” D
E E
44. In my view, Re M is not analogous to the present case. For
F committal proceedings under O.52 of the RDC/RHC, the party initiating F
the committal proceedings would have to file a ‘Statement’ which, as a
G G
matter of law, is akin to an Indictment in criminal cases which the alleged
H contemnor has to face and answer (see LPK v. HSH [2012] 2 HKLRD H
1031). For judgment summons procedure under Rule 87 of the MCR, the
I I
creditor would have to seek leave to issue a summons to bring the debtor to
J attend court and be orally examined as to his means and, if appropriate, J
also to produce books or documents at the hearing. As said earlier, Mr.
K K
Marwah had not referred to any rule (my emphasis) in respect of which
L there was non compliance in the present Judgment Summons. To the L
contrary, the Judgment Summons was issued in strict compliance with the
M M
relevant rule, namely, Rule 87 of the MCR. The Praecipe and the
N Judgment Summons were not signed by the Payee personally (my N
emphasis) as Mr. Marwah had so submitted simply could not stand as a
O O
contention at all. Reason is that these reciprocal enforcement
P proceedings were brought by the Registrar in his official capacity on P
behalf of the Payee under the MOREO rather than by the Payee herself in
Q Q
her personal capacity. This follows without the need for further
R elaboration that the party signing would be the Registrar and not the Payee. R
S S
45. For the above reasons, I find there was no irregularity in
T respect of the Judgment Summons. T
U U
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由此
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A A
Criminal Nature of Judgment Summons
B B
C 46. The submission made was that the Judgment Summons C
proceedings are ‘criminal proceedings’ for the purposes of Articles 10 and
D D
11 of the BORO. The case of Koon Wing Yee v. Insider Dealing Tribunal
E [2008] 11 HKCFAR 170 was cited and the common law privilege against E
self-incrimination was referred to in Mr. Marwah’s Supplemental
F F
Submissions.
G G
47. The whole issue which the Respondent was trying to bring out,
H H
as I see it, is that whenever proceedings which carry punitive sanctions
I irrespective of whether they are civil or criminal by nature, it should not I
J
undermine one’s privilege against self-incrimination. J
K K
48. Referring to the case of Mubarak v. Mubarak (supra), the
L
English Court of Appeal had held that the previous process of judgment L
summons that had been practised was not compliant with the European
M M
Convention of Human Rights (“ECHR”). At paragraph 36 of the
N Judgment where Thorpe LJ said :- N
O O
“However, an application under the Act may originate in family
proceedings, it is clearly a procedure subjecting the respondent to the
P risk of the criminal sanction of imprisonment, and it seems to me P
manifest that Mr. Howard is correct in his submissions as to its proper
classification in terms of Convention law. The difficulties of adapting
Q the age-old Court 51 procedure to the arrival of the European Q
Convention for the Protection of Human Rights and Fundamental
R Freedoms 1950 are, it seems to me, considerable. As my Lord has R
pointed out during the course of argument, the procedure under the
Debtors Act 1869 essentially combines in one what might be said to be
S two distinct exercises, namely the examination of means, for which the S
husband respondent may well be a compellable witness; and the
determination of whether he is in default and whether or not the
T T
sanction should be applies, as to which the husband is certainly not a
U U
V V
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A A
compellable witness.”
B B
C C
49. Following the decision of the English Court of Appeal in
D Mubarak, there were amendments to the Family Procedure Rules 2010 D
(“FPR”) in England and Wales. Rule 33.14(1) now provides that no
E E
person may be committed on an application for a judgment summons
F unless the judgment creditor proves that the debtor :- F
G G
“(i) has, or has had, since the date of this order the means to pay the
sum in respect of which the debtor has made default; and
H H
(ii) has refused or neglected, or refuses or neglects, to pay that sum.”
I I
50. Further, Rule 33.14(2) now made it explicit that the debtor
J J
may not be compelled to give evidence.
K K
51. The English Court of Appeal in the case of Prest v. Prest
L L
[2015] EWCA Civ 714, which is a recent decision few months ago on 7
M July 2015, where Lord Justice McFarlane discussed at length the common M
law development of the judgment summons procedure after Mubarak :-
N N
O “53. In the course of submissions we were taken to a number of O
authorities relating to the use of an application for a judgment
summons under the 1869 Act, s 5, in matrimonial proceedings.
P As is well known, this court in the case of Mubarak v. Mubarak P
[2001] 1 FLR 698 identified the difficulties involved in adapting
Q the judgment summons procedure to the requirements of the Q
European Convention for the Protection of Human Rights and
Fundamental Freedoms 1950. Notwithstanding the criminal
R nature of the proceedings, the judgment summons process at that R
time made no reference to the criminal standard of proof,
required individuals to incriminate themselves, placed the burden
S S
of proof on the person facing committal and seemingly muddled
the separate processes of undertaking a means enquiry and of
T committal proceedings. In consequence the court in Mubarak T
predicted that the practical effect of these difficulties would be to
U U
V V
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A A
render the Debtors Act 1869 largely obsolete as a means of
B enforcement in matrimonial proceedings. B
54. As a consequence of the decision in Mubarak the relevant court
C C
rules were amended and now appear in the form set out in FRP
2010, r 33.14 (see paragraph 11 above). Counsel have drawn
D attention to three authorities relating to the judgment summons D
process subsequent to these amendments : Zuk v. Zuk [2012]
EWCA Civ 1871; [2013] 2 FLR 1466; Bhura v. Bhura [2012]
E EWHC 3633 (Fam); [2013] 2 FLR 44; and Mohan v. Mohan E
[2013] EWCA Civ 586; [2014] 1 FLR 717. Each of these
F authorities contains dicta which, with respect, I consider should F
be treated with a substantial degree of caution. The relevant
passages are, firstly, in Zuk at paragraph 19 where Thorpe LJ
G said : G
“19. However, all that said, where the order which the
H H
creditor seeks to enforce is a lump sum order, the judgment
creditor starts from the strong position that the order itself
I establishes, either expressly or implicitly, that the payer had the I
means to pay at the date the order was made. As my Lord,
Patten LJ, put it in argument, perhaps at that stage the evidential
J J
burden passes to the debtor, whilst not of course undermining
the obligation on the creditor to discharge the burden of proof.
K Plainly in a case where there has been some major and K
unforeseen financial development which removes from the payer
the ability to pay which he had at the date of order, the
L ordinary expectation is that he would be the applicant to the L
court seeking the variation of the order either under the limited
M
powers of the court to revisit in the light of some volcanic M
development or perhaps simply to seek some relief by way of
deferment of the date of payment or perhaps future payment by
N instalments. So although of course the rule is and must remain N
that the burden of proof rests on the applicant, I think in a case
such as this that burden is lightly discharged and an evidential
O O
burden may switch to the debtor.”
P In Bhura at paragraph 13, where Mostyn J said : P
“Stated shortly it seems to me that the applicable principles are
Q these : Q
R (i)…… R
(ii)…..
(iii)….
S (iv) It is essential that the applicant adduces sufficient S
evidence to establish at least a case to answer. Generally
speaking, this need not be an elaborate exercise. Proof of the
T T
order and of non-payment will likely give rise to an inference
U U
V V
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A A
which establishes the case to answer.
B (v)….. B
(vi) If the applicant establishes a case to answer an
evidential burden shifts to the respondent to answer it. If he
C C
fails to discharge that evidential burden then the terms of s 5 will
be found proved against him or her to the requisite standard.”
D D
And in Mohan, at paragraph 45 where Thorpe LJ said :
E “……the wife’s advisers might have….concluded that….the only E
effective remedy was the immediate issue of a summons under
F the Debtors Act. Very little evidence would have been F
necessary from the wife in support…The reality is that if he
attended [the summons hearing], although not compellable, he
G would have been obliged to proffer explanation and excuse.” G
55. The collective professional experience of Thorpe LJ and Mostyn
H H
J in these matters makes me most hesitant to express a contrary
view, but my reason for advising caution concerning this set of
I observations is that they each suggest that, in the course of the I
criminal process that is the hearing of a judgment summons, it is
simply sufficient to rely upon findings as a wealth made on the
J J
civil standard of proof in the original proceedings and that those
findings, coupled with proof of non-payment, is sufficient to
K establish a ‘burden’ on the respondent which can only be K
discharged if he or she enters the witness box and proffers a
credible explanation. The facts of each case will differ, and the
L aim of Thorpe LJ and Mostyn J in envisaging a process which is L
straightforward and not onerous to the applicant is laudable, but
M
at the end of the day this is a process which may result in the M
respondent serving a term of imprisonment and the court must be
clear as to the following requirements, namely that :
N N
(a) The fact that the respondent has or has had, since the date of
the order or judgment, the means to pay the sum due must be
O O
proved to the criminal standard of proof;
P (b) The fact that the respondent has refused or neglected, or P
refuses or neglects, to pay the sum due must also be proved
to the criminal standard;
Q Q
(c) The burden of proof is at all times on the applicant; and
R R
(d) The respondent cannot be compelled to give evidence.”
S S
52. Having said, Order 90A of the RDC (Proceedings
T T
Concerning Judgment Summons) in Hong Kong sets out the definition
U U
V V
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A A
of ‘judgment summons’ (O.90A r.2(1)), the procedural aspects of such
B B
process (O.90A r.2(2) to (4)) and the powers available to the Court (i)
C upon hearing of the judgment summons (O.90A r.2(5)) and; (ii) after an C
order of commitment was made (O.90A r.2(6)). The provision which
D D
provides the Court with the power to make an order of commitment is
E under O.90A r.2(5)(c) where it said :- E
F F
“(5) On the hearing of the judgment summons the judge may (my
emphasis) -
G G
(c) where the judgment debtor, having been ordered under
H subparagraph (b) to attend at a specified time on a specified H
day, fails to do so, or where the judgment debtor attends, but
I fails to show cause why an order of commitment should not I
be made against him, make an order for the commitment of
the judgment debtor.”
J J
53. In my view, the discretionary powers of the court to make an
K K
order of commitment coupled with the power to, in appropriate cases,
L suspend execution of the order of commitment on terms, if such an order L
M
was made, have had a neutralizing effect for a civil process of enforcement M
to carry with it somewhat akin to criminal sanction or penalty of
N N
imprisonment. Bearing in mind the serious consequences which might
O
follow, it has long been the Court’s views that judgment summons is only O
a remedy of last resort.
P P
Q 54. Back in 2002 in the case of X v. Y (FCDJ 536/1997), His Q
Honour Judge Gill said :-
R R
S
“26. To incarcerate a judgment debtor is a remedy of last resort. As S
Nazareth NPJ said in Gray v. Servino, FACV 8 of 2001, ‘In family
T cases it should be the very last resort.’. I take that to mean reserved T
U U
V V
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A A
for the debtor who has shown contumelious disregard for his
B B
court-ordered obligations to those dependent on him.”
C C
55. Thirteen years later in the recent case of BT v. YHK (FCMC
D D
943/2011), date of judgment : 29 May 2015, Her Honour Melloy sets out
E the law on judgment summons, inter alia, as follows :- E
F F
G “The law on Judgment Summonses G
H H
7. Turning next to the law on judgment summonses. The
judgment debtor is required to show cause. He has to show the court
I I
why he should not be committed to prison for contempt. The court is
J to ascertain whether he had the ability to make the payments ordered J
and whether he has wilfully failed to do so (reference Ellis v. Ellis
K [2005] EWCA Civ 853). The judgment creditor needs to prove this K
beyond reasonable doubt. Mubarak v. Mubarak [2007] 1 WLR 271 is
L L
the case in question. Further, it is accepted that a judgment summons
M
like all proceedings for contempt is a remedy of last resort and, M
particularly so, in the Family Court, reference CYM v. TML [2013] 1
N HKLRD 701, the Court of Appeal decision. N
O O
8. The court has the power to commit a judgment debtor to prison
certainly for up to 3 months and, arguably, for longer, or to commit
P P
suspended upon payment of the outstanding debt, either in its entirety or
Q by instalments, or to adjourn sine die with liberty to restore. Q
R 9. When considering the possibility of imprisonment, the court is R
bound by the claims made in the original judgment summonses. In
S S
other words, the court looks at the amount that the judgment creditor
says it is owed at that date and the judgment debtor is put to strict proof
T T
in relation to those amounts. If the court is considering the possibility
U U
V V
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A A
of making a new order in which the judgment debtor is, for example,
B B
asked to pay by instalments, then it is possible to calculate the
outstanding amount due up-to-date or to remit or suspend or in some
C C
other way to vary the amount owed.
D D
10. …………”
E E
F F
G G
56. Whilst amendment somewhat similar to those in the England
H and Wales has yet to be seen in our rules on the judgment summons H
process of enforcement, I find no basis for the Court not to accept such
I I
process of enforcement if they are properly taken out under the existing
J rules and procedure. J
K K
57. In my view, if there are any potential problems on whatever
L issues arising from the legislation, it could only be tackled by legislative L
amendments rather than by judicial restraint. As I said earlier, the Bill of
M M
Rights compliant issue only came about from the obiter dicta of Hon Lam
N VP in CYM v. YML (supra). Through the use of discretionary powers of N
the Courts under the judgment summons procedure ((O.90A r.2(5) and (6)),
O O
along with the 4 safeguards set forth by Lord Justice McFarlane in Prest v.
P Prest (supra), I believe any potential problems arising could have been P
resolved, to the very least temporarily, and not for the Court to put a
Q Q
complete halt to the judgment summons process of enforcement for reason
R of ‘irregularity’ as the Respondent now submitted. R
S S
58. The DOJ went further in their Second Legal Submissions at
T paragraph 11 made submission that the process of committal under Order T
U U
V V
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A A
90A rule 2(5)(c) could be procedurally separated from the other provisions
B B
of Order 90A, of which are essentially civil in nature and that the
C applicable standard of proof for those other provisions are the civil one. C
At this stage and for this Judgment, I do not intend to venture into the
D D
severability of O.90A rule 2(5)(c) from other provisions of Order 90A for
E the judgment summons enforcement process nor do I have to go into E
details as to standard of proof. Both English and Hong Kong cases have
F F
already sufficiently set out the standard of proof in judgment summons
G process required of the judgment creditor is that of beyond reasonable G
doubt. What really needs to be tackled is the risk of self incrimination;
H H
possibly embraced within the existing rules and procedure of the judgment
I summons process; in respect of which could only be fully resolved through I
J
legislative process rather than judicial intervention or restraint. J
K K
59. For all the above reasons, I find the Respondent’s Regularity
L
Challenge also fails. L
M M
Decision of the Court
N N
60. In my decision, the Respondent’s SA Summons must fail and
O O
be dismissed.
P P
Costs
Q Q
R 61. Taking into account the neutral stance of the DOJ in respect of R
the Respondent’s SA Summons, it is fair and reasonable not to make any
S S
costs order.
T T
U U
V V
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A A
62. I will so order accordingly.
B B
C Hearing of the Judgment Summons C
D D
63. Following this decision, I now direct the Judgment Summons
E dated 22 May 2012 be restored for a call over hearing on 21st March 2016 E
at 2:30 p.m..
F F
G Orders G
H H
64. I now make the following Orders :-
I I
J
(a) The Respondent’s (Payer’s) Summons dated 14 July 2015 J
be dismissed;
K K
L
(b) The Judgment Summons dated 22 May 2012 be restored L
for hearing on 21st March 2016 at 2:30 p.m.;
M M
(c) There be no Order as to costs of the Respondent’s (Payer’s)
N N
Summons dated 14 July 2015 including any costs reserved.
O O
65. Last but not least, I wish to express my gratitude to Counsel
P P
for their assistance in this case.
Q Q
R R
(George Own)
S
Deputy District Judge S
T T
U U
V V
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A A
Department of Justice for the Registrar, on behalf of the Petitioner
B (Judgment Creditor) under the Maintenance Order (Reciprocal B
Enforcement) Ordinance, Cap.188
C C
Mr Shaphan Marwah instructed by Messrs. Gall, Solicitors for the
D Respondent (Judgment Debtor) D
E E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
FCMP103/2012 YPC also known as CL v. SSHL - LawHero