Hong Kong Regulations

THE RULES OF THE SUPREME COURT - ORDER 44A

(HK) PROHIBITION ORDER BEFORE OR AFTER JUDGMENT AND ATTACHMENT OF PROPERTY BEFORE JUDGMENT

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PROVISIONAL REMEDIES

(HK) ORDER 44A

(HK) PROHIBITION ORDER BEFORE OR AFTER JUDGMENT AND ATTACHMENT OF PROPERTY
BEFORE JUDGMENT

Prohibition order against debtor

1. Application of the Order to an intended action (O. 44A, r. 1)

(1) Subject to paragraph (2), on the hearing of an application by a plaintiff,
the Judge may, if he thinks fit, order that the relief provided by this Order
shall be available to the plaintiff notwithstanding that the plaintiff has not
commenced his action.

(2) An order shall not be made under paragraph (1) unless the plaintiff, at
the hearing of his application for such order-

   (a)  produces at the hearing of the application, a draft writ; and

   (b)  undertakes to the Judge to issue the writ on the next day on which an
        office of the Court is open.

(3) In paragraph (1), "plaintiff" (原告人) means a person who intends to
commence an action and elsewhere in this Order, where the Judge has
made an order under paragraph (1), "plaintiff" (原告人) includes a person
who
intends to commence an action and "defendant" (被告人) or "debtor"
(債務人) includes a person against whom a plaintiff intends to commence an
action.

2. Application for an order prohibiting a debtor from leaving Hong Kong (O.
44A, r. 2)

A plaintiff or judgment creditor may apply ex parte to the Court for an order
prohibiting a debtor from leaving Hong Kong.

3. Making of prohibition order (O. 44A, r. 3)

(1) Subject to the provisions of section 21B of the Ordinance the  Court may
make an order prohibiting the debtor from leaving Hong Kong.

(2) The order prohibiting a debtor from leaving Hong Kong shall be in Form No.
106 in Appendix A.

4. Application to discharge order (O. 44A, r. 4)

(1) Where a debtor is prohibited from leaving Hong Kong, he may, on 2 days
clear notice to the plaintiff or judgment creditor and upon being present in
person in Court, apply for the order to be discharged.

(2) In an application under paragraph (1) by a debtor under a judgment for
money, the Court shall, after the assessment of the amount due to
the judgment creditor if appropriate-

   (a)  discharge the order; and

   (b)  proceed as if the judgment debtor appears under arrest for examination
        under Order 49B.

(3) Where, in an application under paragraph (1), a debtor for money, other
than a judgment debtor-

   (a)  consents to judgment being entered against him; or

   (b)  satisfies the Court that he has a substantial defence to the
        plaintiff's claim; or

   (c)  consents to judgment being entered against him in respect of part of
        the plaintiff's claim and, as to the remainder of that claim,
        satisfies the Court that he has a substantial defence to the
        plaintiff's claim, (L.N. 126 of 1995) the Court shall-

        (i)    discharge the order; and

        (ii)   where the defendant consents to judgment being entered against
               him in respect of the whole or any part of the plaintiff's
               claim, give judgment in accordance with that consent and
               thereafter proceed as if the defendant appears under arrest for
               examination under Order 49B.

(4) Where, in an application under paragraph (1), a debtor, other than a
debtor for money or a debtor under a judgment for money, satisfies the Court
that he has a substantial defence to the plaintiff's claim, the  Court shall
discharge the order.

(5) In an application under paragraph (1), the Court may either for the
purposes of the application or to achieve a speedy determination of any issue
in dispute, give such directions as it thinks fit as to the filing of
statements of claim, defences and counter-claims, the filing of affidavits,
the assessment of the amount due or otherwise.

(6) Paragraphs (2), (3) and (4) shall not prevent the Court from discharging
the order, either absolutely or subject to conditions, in any circumstances in
which it thinks fit to do so.

5. Power to award compensation (O. 44A, r. 5)

(1) Where it appears to the Court that the order prohibiting a debtor from
leaving Hong Kong-

   (a)  was applied for on insufficient grounds; or

   (b)  was not caused to lapse by the plaintiff or judgment creditor as soon
        as reasonably possible after it was no longer required, the Court may,
        on the application of the debtor, award against the plaintiff or
        judgment creditor reasonable compensation to the debtor for any injury
        or loss sustained by the debtor by reason of sub-paragraph (a) or (b):
        Provided that the Court shall not award a larger sum by way of
        compensation under this rule than is competent to the Court to award
        in an action for damages.

(2) An award of compensation under this rule shall bar any action for damages
in respect of the prohibition order.

Interim attachment of property of defendant

7. Application for taking security from defendant or for attachment of his
property in certain cases (O. 44A, r. 7)

(1) If in any action the defendant, with intent to obstruct or delay the
execution of any judgment that may be given against him in the  action, is
about to dispose of his property or any part thereof, or to remove any such
property from the jurisdiction of the Court, the plaintiff may, either at the
institution of the action or at any time thereafter until final judgment,
apply to the Court to call upon the defendant to furnish sufficient security
to produce and place at the disposal of the  Court, when required, his
property, or the value of the same, or such portion thereof as may be
sufficient to answer any judgment that may be given against him in the action,
and, in the event of his failing to furnish such security, to direct that any
property, movable or immovable, belonging to the defendant shall be attached
until the further order of the Court.

(2) The application shall contain a specification of the property required to
be attached, and the estimated value thereof, so far as the plaintiff can
reasonably ascertain the same.

(3) There shall be filed with the application an affidavit to the effect that
the defendant is about to dispose of or remove his property or some part
thereof, with such intent as aforesaid.

8. Issue of warrant requiring defendant to furnish security or to appear and
show cause, and attaching his property (O. 44A, r. 8)

(1) If the Court, after making such investigation as it may consider
necessary, is of opinion that there is probable cause for believing that the
defendant is about to dispose of or remove his property or some part thereof,
with such intent as aforesaid, it shall be lawful for the Court to issue a
warrant to the bailiff commanding him to call upon the defendant, within a
time to be fixed by the Court, either to furnish security, in such sum as may
be specified in the order to produce and place at the disposal of the Court,
when required, the said property, or the value of the same, or such portion
thereof as may be sufficient to answer any judgment that may be given against
him in the action, or to appear before the Court and show cause why he should
not furnish such security. (See App. C, Form 5)

(2) The Court may also in the warrant direct the attachment until further
order of the whole or any portion of the property of the defendant within the
Colony.

(3) The attachment shall be made, according to the nature of the property to
be attached, in the manner prescribed for the attachment of property in
execution of a judgment for money.

9. Showing cause, and procedure thereon (O. 44A, r. 9)

(1) If the defendant shows such cause or furnishes the required security
within the time fixed by the Court, and the property specified in the
application, or any portion thereof, has been attached, the Court shall order
the attachment to be withdrawn.

(2) If the defendant fails to show such cause or to furnish the required
security within the time fixed by the Court, the Court may direct that the
property specified in the application, if not already attached, or such
portion thereof as may be sufficient to answer any judgment that may be given
against the defendant in the action, shall be attached until the further order
of the Court.

(3) The attachment shall be made, according to the nature of the property to
be attached, in the manner prescribed for the attachment of property in
execution of a judgment for money.

10. Saving of rights of other persons under attachment (O. 44A, r. 10)

(1) The attachment shall not affect the rights of any persons not being
parties to the action, and in the event of any claim being preferred to the
property attached before judgment, such claim shall be investigated in the
manner prescribed for the investigation of claims to property attached in
execution of a judgment.

(2) Where the property consists of movable property to which the 
judgment debtor is entitled subject to a lien or right of some other person to
the immediate possession thereof, the attachment shall be made by a written
order prohibiting the person in possession from giving over the property to
the judgment debtor or to any other person.

11. Removal of attachment on furnishing of security (O. 44A, r. 11)

In any case of attachment before judgment the Court shall at any time remove
the same on the defendant furnishing the required security together with
security for the costs of the attachment.

12. Power to award compensation to defendant for unjustifiable attachment (O.
44A, r. 12)

(1) If it appears to the Court that the attachment was applied for on
insufficient grounds, or if the action is dismissed or judgment is given
against the plaintiff by default or otherwise and it appears to the  Court
that there was no probable ground for instituting the action, the  Court may,
on the application of the defendant, made either before or at the time of the
pronouncing of the judgment, award against the plaintiff such amount, as it
may deem a reasonable compensation to the defendant for any injury or loss
which he may have sustained by reason of the attachment: Provided that
the Court shall not award a larger sum by way of compensation under this rule
than it is competent to the Court to award in an action for damages.

(2) An award of compensation under this rule shall bar any action for damages
in respect of the attachment. (Enacted 1988)

"plaintiff" (原告人)

"defendant" (被告人) or "debtor" (債務人)