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There are occasions when a judgement obtained in a court outside Hong Kong has to be enforced against the Defendant’s assets within Hong Kong. There are two procedures for obtaining legal authority for enforcement within Hong Kong. Firstly it may be enforced through the common law and secondly it may be enforced under the Foreign Judgements (Reciprocal Enforcement) Ordinance.
1. Common Law
To enforce a judgement at common law legal proceedings against the Defendant are begun by writ in the usual way. The Defendant may enter a defence but usually the Plaintiff will apply for summary judgement. This is because the Hong Kong court will not look into the merits of the case unless it can be shown that the judgement was obtained by fraud or duress or is in breach of natural justice. In addition a judgement will not be enforced in Hong Kong if it can be shown that either the judgment or its enforcement is contrary to Hong Kong public policy. The Plaintiff has to show the judgement is final and conclusive, that is to say any appeal period has expired. In addition a judgement will not be enforced in Hong Kong if it can be demonstrated that either the judgement or its enforcement is contrary to Hong Kong public policy.
2. The Foreign Judgements (Reciprocal Enforcement) Ordinance
This ordinance provides a procedure whereby foreign judgements which are wholly unsatisfied can be registered in the Court of First Instance. The Application has to be made within 6 years after the date of the foreign judgement or the conclusion of any appeal process and it has to be shown that the judgement could not be enforced in the original foreign jurisdiction.
There are circumstances set out in the ordinance when the registration of the foreign judgement shall or may be set aside. This ordinance does not apply to judgements of all foreign courts. The Foreign Judgements (Recipricoal Enforcement) Order lists out certain countries with the Commonwealth and the European Community to which it does apply. The power to extend the countries to which the jurisdiction applies was originally vested in the Governor in Council. That position has now been replaced by the Chief Executive of the Hong Kong Special Administrative Region.
Whilst every effort has been made to ensure the accuracy of this article it is general in nature and does not constitute legal advice of any kind. You should seek your own personal legal advice before taking legal action. We accept no liability whatsoever for loss arising out of the use or misuse of this article.