CY v. PYKC

FCMP 31 of 2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 31 OF 2005

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R U L I N G

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1. The preliminary issue in this Judgment Summons is whether in proceedings for enforcement of a registered foreign maintenance order, leave is required under s. 12 of the Matrimonial Proceedings and Property Ordinance Cap. 192 (“MPPO”) for the enforcement of arrears due more than 12 months before proceedings for enforcement are begun.

2. The Applicant / Judgment Creditor is the former wife of the Respondent / Judgment Debtor and she is now residing in Ontario, Canada with the child of the family, now 19.  The Respondent resides in Hong Kong.

3. On 26^th February 1991, the Applicant obtained a maintenance order from the Ontario Court (General Division) of Canada (“Maintenance Order”) which provides that the Respondent should pay to her for the child of the marriage the amount of Can$1,000 per month, with effect from 8^th January 1991 as interim child support.

4. The payments became more sporadic since about late 1999.  Subsequently the Maintenance Order was registered in Hong Kong on 30^th August 2000 under s. 7 of the Maintenance Orders (Reciprocal Enforcement) Ordinance Cap 188 (“MREO”).

5. On 14^th March 2005, the Applicant, through the Department of Justice of Hong Kong, applied for leave to issue a Judgment Summons.

6. Leave was granted and on 22^nd March 2005, a Judgment Summons was duly issued against the Respondent for arrears totalling CAN$42,100 or about HK$221,719.5 as at April 2004.

7. Mr. Enzo Chow, of the Department of Justice, who appeared on behalf of the Applicant seeks to argue as a preliminary issue as to whether leave is required under s. 12 of MPPO to enforce arrears which became due more than 12 months before the Judgment Summons was issued. He submits that leave should not be required for, inter alia, the following reasons :

(i) the meaning of “maintenance order” under s. 2 of MREO is very wide, and is not limited to orders granted in matrimonial proceedings, and refers to order for periodical payment of sums of money towards maintenance of any person, and includes an affiliation order.

(ii) S. 9 (1) of MREO is only a “deeming provision” and shall not be taken as imperative for the District Court to follow all the procedural requirements under the relevant legislation, unless a particular requirement is necessary, appropriate and equitable.

(iii) S. 12 of MPPO only applies to certain orders made under that ordinance.

8. Mr Chow further submits that this court should not apply the so called “12 month rule”, namely the practice of not enforcing arrears due more than 12 months before enforcement proceedings are begun, in registered foreign maintenance orders.

9. The Respondent was acting in person.  From what he said, I understood his position to be that the “12 month rule” should be invoked.

10. I would, first of all deal with the application of s. 12 of MPPO.

MEANING OF “MAINTENANCE ORDER”

11. Under s. 2 of MREO, “maintenance order” means any of the following : -

“(a) an order (including an affiliation order or order consequent upon an affiliation order) which provides for the periodical payment of sums of money towards the maintenance of any person, being a person whom the person liable to make payments under the order is, according to the law applied in the place where the order was made, liable to maintain; and

(b) an affiliation order or order consequent upon an affiliation order being an order which provides for the payment by a person adjudged, found or declared to be a child’s father of expenses incidental to the child’s birth or, where the child has died, of his funeral expenses; and

(c) in the case of a maintenance order which has been varied, that order as varied, but does not include a maintenance order being, or made pursuant to, a judgment which by virtue of the Foreign Judgments (Restriction on Recognition and Enforcement) Ordinance (Cap. 46) cannot be recognized or enforce in Hong Kong”.

12. On the reading of the above, clearly the meaning of “maintenance order” is very wide, and it includes an affiliation order and an order for periodical payment of sums of money towards the maintenance of any person, whom the payer is liable to maintain according to the law in the foreign place.  Therefore, such an order is not just restricted to a maintenance order for a lawful spouse or a child of a marriage.

S. 9(1) OF MREO

13. S. 9(1) of MREO provides that : -

“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 make it; and proceedings for or with respect to the enforcement of any such order may be taken accordingly”.

14. Mr Chow submits that the purpose of this section is to facilitate the District Court to “draw analogy regarding the procedure for enforcement of registered orders”.

15. It appears to me the effect of this section is to presume that the District Court had jurisdiction to make the order and that even if the District Court did not have the jurisdiction to make the registered order, it would still have the jurisdiction to deal with the enforcement proceedings.  I agree with Mr. Chow that this section should not be interpreted to mean that, in dealing with the enforcement proceedings, it is imperative that s. 12 of MPPO shall apply.

S.12 OF MPPO

16. s. 12(1) of MPPO provides that :

“A person shall not be entitled to enforce through the court the payment of any arrears due under an order made by virtue of section 3, 4(1), 5(2), 8(5), or 8(6) without the leave of the court if those arrears became due more than twelve months before proceedings to enforce the payment of them are begun”.

17. Section 3 deals with maintenance pending suit for a party to marriage.  Section 4(1) deals with periodical payments for a child of the family.  Section 5(2) deals with periodical payments for a party to a marriage.  Section 8(5) or (6) deal with periodical payments for a party to a marriage and / or a child of the family in proceedings on ground of wilful neglect to maintain.  Under the MPPO, this court only has jurisdiction to make a s. 3 order on the presentation of a petition or a joint application for divorce, petition for a nullity or judicial separation under the Matrimonial Causes Ordinance (“MCO”).  Further, it only has jurisdiction to make orders under s. 4(1) and s. 5(2) upon granting of a divorce, nullity or a judicial separation under the MCO and it cannot entertain an application under s. 8(5) or (6) unless it has jurisdiction to entertain proceedings for judicial separation under the MCO.

18. Mr Chow has referred me to maintenance orders made under Guardianship of Minors Ordinance.  In the said Ordinance there is no provision for leave to enforce payments for over 12 months.  In fact, I find under the Separation and Maintenance Orders Ordinance where maintenance orders can be made, there is also no such provision for leave to enforce arrears for over 12 months.  Enforcement proceedings for maintenance orders under these ordinances are in accordance with Part IV of the District Court Ordinance and the Rules of the District Court.  I am unable to find any provisions similar to s. 12 of MPPO in the District Court Ordinance or the Rules of the District Court.

19. On reading s. 12 of MPPO, I agree that the section is only confined to the specific orders referred to in the section and made under MPPO, and therefore does not apply to maintenance orders made under other ordinances.  It appears from s. 9(1) of MREO that enforcement proceedings for a registered foreign maintenance order should be in accordance with the Rules of District Court, similar to orders under the two ordinances mentioned in the paragraph above and thus s. 12 of MPPO is not applicable.

THE 12 MONTH RULE

20. I now turn to the so called “12 month rule” of not enforcing arrears of maintenance due more than 12 months.

21. In relation to this practice / rule, Sir John Donaldson, Master of the Rolls has said in the case of Russell v. Russell 1986 1 FLR 465 : -

“ ……  The rule of practice in relation to the non-enforcement of “stale arrears” dates from the days of the ecclesiastical courts (see Kerr v Kerr 1987 2 QB 439, at p. 443), when bank accounts and savings were no doubt much rarer than they are today and maintenance orders were literally a hand (or pocket) to mouth matter.  The philosophy underlying the rule must therefore have been that if the complainant waited a year to seek enforcement of the order, she did not need the money, or at least had managed well enough without it, and the husband might reasonably regard the liability as something which he could forget about.  This is not to say that the rule has changed in modern times when a wife might reasonably live on her savings for a period and expect to be reimbursed by a single large payment.  However, it does point to the fact that the courts should take account of the extent to which the complainant has sought to assert her rights”.

22. Mr. Justice Hartmann in K. v K. HCMC 2 / 2004 referred to this “long-standing practice”, when dealing with an application for leave under s. 12 of MPPO, has said “an applicant must therefore take reasonably timeous steps, that is, within a year, to assert his or her right to maintenance unless there is good reason otherwise.  An applicant cannot simply let the arrears accumulate, making do without them, until, with more than a year elapsed, perhaps an oppressively large capital debt has arisen  ……  Accordingly, “stale arrears” as Sir John Donaldson described them, are not to be enforced unless good reason is demonstrated or special circumstances are shown”.

23. The orders sought to be enforced in K v K and Russell v Russell referred to above were not registered foreign maintenance orders.

24. The 12 month rule is not an absolute rule and arrears due over 12 months may be enforced if there are justifiable reasons or special circumstances (see Russell v Russell and also C v S 1997 3 F.C.R. 423).

25. Mr Chow submits that the underlying purpose of MREO is to facilitate the recovery of maintenance by or from persons in Hong Kong from or by other persons in reciprocating countries (see the Long Title of MREO), and that the reason why such reciprocal arrangement is necessary is that maintenance payees often encounter difficulties in tracing the payers as well as in enforcing the maintenance in arrears abroad, and thus very frequently, delay is inevitable in enforcement proceedings.  In the circumstances, Mr Chow submits that in enforcement proceedings of foreign orders the 12 month rule should not apply at all.

26. Mr. Chow has referred me to the case of Pilcher v Pilcher 1956 1 ALL ER 463, which is not in his favour.  Mr Chow submits that in that case, Lord Merriman simply accepted that the 12 month rule should apply in enforcement of foreign maintenance orders and that His Lordship had lost sight of the circumstances peculiar to foreign maintenance orders.

27. Pilcher v Pilcher is a case where the wife had obtained a maintenance order in Gibraltar, and sought to enforce it in England.

28. The history of the case of Pilcher v Pilcher was rather confused.  I would try and simplify it.  The Gibraltar maintenance order was registered in England about 15 months after it was made.  The husband applied to revoke the Gibraltar maintenance order, which was granted.  The wife’s application for enforcement was heard about 6 month later, but for various reasons, which I will not go into, it was adjourned sine die.  There were various appeals, and eventually, on appeal, the revocation order was set aside, and there was a rehearing of the wife’s application for enforcement.  Eventually, the magistrate, after rehearing, made an order that the husband be committed to prison for default in paying the total arrears accrued under the registered order up to the date of his order.  The husband appealed, and on appeal, Lord Merriman had regard to, inter alia, (i) the fact that much of the arrears had accrued during the time when the maintenance order had been apparently, albeit ineffectively revoked, so that the husband had been led to suppose that he was under no obligation to make any payment, and (ii) that the magistrate ought, as a matter of practice, impose a retrospective time limit, such as a year, beyond which the husband would be not required to pay arrears.  In the end, Lord Merriman decided that the court should try to find some sum which, in the circumstances of the case, would enable the order to go forward, with some inducement to the husband to keep up his responsibility to the wife, and he remitted all the arrears due prior to the magistrate’s order.

29. Under s. 9(4) of the MREO, the court, on the hearing of an application for the enforcement of a registered foreign maintenance order, the District Court may remit the whole or any part of the amount due under the order.  Thus, the District Court has the discretion to remit all or part of the arrears.

30. For judgment summonses, one of the matters the court may have to be satisfied is whether the judgment debtor is able to satisfy the judgment debt, wholly or partly from his current means (see O 49B r 1B of Rules of District Court and Hua Chiao Commercial Bank Ltd v Alpha Plus International Development Ltd 2001 2HKC 54).

31. In enforcement proceedings of a foreign maintenance order, whether the maintenance payee has or has not encountered difficulties in tracing the payer will depend on the circumstances of each case.  There may be cases where the whereabout of the payer is clearly known to the payee, and there are no good reasons or special circumstances for the delay.  There may be cases where the payer has deliberately been hiding, resulting in a long delay in the payee trying to find him / her.  These are matters which the court will need to consider in exercising its discretion whether or not to remit all or any of the arrears, particularly when arrears have built up over a long period of time.  I am of the view that the court may look into the reasons for the delay and whether the 12 month rule applies or not is one of the matters which the court may have regard to, in exercising its discretion.

CONCLUSION

32. In the above circumstances, I am of the view that the statutory provision of s. 12 of the MPPO does not apply in enforcement of foreign maintenance orders registered under s. 7 of MREO, and therefore it is not necessary for the applicant to apply for leave to enforce arrears due more than 12 months before enforcement proceedings are begun.  However, although no leave is required, whether the 12 month rule applies or not is one of the matters this court may have regard to, when exercising its discretion under s. 9 (4) of MREO as to whether all or part of the arrears should be remitted.