PRACTICE DIRECTION – SL10.2
Guidance Note on Judgment Summons Procedure
Background
1. In YBL v LWC [2017] 1 HKLRD 823, the Court of Appeal held that the present judgment summons procedure under Rule 87 of the Matrimonial Causes Rules, Cap 179A (“MCR”) has features which are incompatible with articles 10 and 11 of the Hong Kong Bill of Rights (“HKBoR”).
2. The Court of Appeal also set out remedial interpretations (in paragraphs 103 – 112 of the Judgment) to read down Rule 87 rendering it compatible with the HKBoR (“Remedial Interpretations”) as follows:
103. In the interpretation section of Rule 87(1), to segregate the examination process from the committal application, the definition of “judgment summons” should be read as meaning “a summons issued under an order made under R.H.C. Order 48, rule 1(1) requiring a judgment debtor to appear and be examined on oath as to his means (“Examination Summons”); or a summons for committal issued under R.H.C. Order 52 (“Committal Summons”)”.
104. Rule 87(2) should be read as confining to the examination process, thus the word “summons” in that sub-paragraph should be read as referring to an Examination Summons.
105. Likewise, Rule 87(3) should be read as governing only the examination process, thus “judgment summons” should be read as referring to an Examination Summons. Similarly, in Form 22, the reference to “judgment summons” in Rule 87(3) in the phrase “I apply for the issue of a judgment summons against …” shall be read as a reference to the Examination Summons.
106. In respect of a Committal Summons, subject to specific provisions to the contrary in Rules 87 and 88, the procedure in Order 52 of the Rules of the High Court are applicable.
107. Hence, the judgment creditor must apply ex parte to a judge for leave to apply for an order of committal. The leave application must be supported by:
(1) A statement as provided by Order 52 rule 2(2) setting out the name and description of the judgment creditor, the name, description and address of the judgment debtor sought to be committed, the terms of the order which the debtor has defaulted, the particulars of the default, and the factual basis showing that the debtor (a) has or has had since the date of the order the means to pay the sum in respect of which he has made default; and (b) has refused or neglected, or refuses or neglects, to pay the sum (“the Statement”); and
(2) An affidavit as provided by the same rule 2(2) verifying the facts relied on as set out in the Statement (“the Supporting Affidavit”), together with all the exhibits relied on which must include a copy of the order.
108. After the court grants leave, the judgment creditor shall issue a Committal Summons in accordance with Order 52 rule 3(1) setting out the grounds in respect of which leave for making an application for an order of committal has been granted.
109. To facilitate the segregation of the two processes and to provide for the two different applications, Rule 87(4) should be read in the following manner:
(1) Subject to (2) below, Rule 87(4) only applies to an Examination Summons, which shall be in Form 23 (as modified to comply with the presumption of innocence). The modification takes the form of removing at the end of the third paragraph in the prescribed form the words “and also to show cause why you should not be committed to prison for such default”.
(2) Other than the requirement of payment of travelling expenses, which applies also to a Committal Summons, Rule 87(4) does not apply to a Committal Summons and Form 23 is not to be used for a Committal Summons. The content and service of a Committal Summons shall follow Order 52 rule 3(1A) and rule 3(1) respectively.
(3) Where the judgment summons is a Committal Summons, a copy of the Statement and the Supporting Affidavit together with the exhibits are required to be served at the same time with the Committal Summons.
110. In light of our conclusion at [98] (e) above, Rule 87(5)(a) shall be read as only applicable to an Examination Summons but not a Committal Summons.
111. Further, Rule 87(5)(c) should be read as providing:
(1) When the judgment debtor fails to appear at the adjourned hearing as directed, the court may only issue a warrant of arrest.
(2) The rest of that sub-paragraph, namely, the words “or where the judgment debtor attends but fails to show cause why an order of commitment should be made against him make an order for the commitment of the judgment debtor” shall be struck out.
112. The following shall be read into Rule 87, namely:
“In determining a Committal Summons, where the court is satisfied that the judgment debtor –
(a) has or has had since the date of the order the means to pay the sum in respect of which he has made default; and
(b) has refused or neglected, or refuses or neglects, to pay the sum,
it may, in its discretion, make an order of commitment against the judgment debtor.”
3. Steps are being taken to review Rule 87 and the statutory forms in the light of the Court of Appeal judgment.
Guidance Note
4. This Guidance Note provides guidance on the practice and procedure to be followed regarding the examination and committal of a judgment debtor pending any amendment of Rule 87 and the statutory forms.
5. The existing practice of combining the examination process and the committal process in a judgment summons should cease. They should be regarded as separate and distinct processes and applied for separately under separate procedures.
6. If a judgment creditor considers that the examination of the judgment debtor can be dispensed with, he may apply ex parte to a judge for leave to apply for an order of committal under the committal process set out hereunder.
Examination process
7. As required by Rule 87(3) and (4), an application for the issue of a summons to examine the judgment debtor should continue to be made by Form 22 of the MCR, and if the application is granted, the summons to examine the judgment debtor should continue to be issued in Form 23 of the MCR. However, in the light of the Remedial Interpretations, both the application and the summons should be regarded as only referring to the examination of the judgment debtor, but not his committal. In this Guidance Note, for the sake of clarity, such a summons is referred to as an Examination Summons.
8. When the Examination Summons is served on the judgment debtor, it should be accompanied with a warning notice in both English and Chinese in the form annexed to this Guidance Note as “A”. Apart from giving the judgment debtor due warning about the examination process, the warning notice also serves to avoid any confusion to the judgment debtor (particularly an unrepresented one) arising from the standard statutory wording of Form 23 regarding the nature and purpose of the summons.
9. On the hearing of an Examination Summons, the judge may:
(1) where the order sought to be enforced is for-
(a) the payment of a lump sum or costs; or
(b) maintenance pending suit or other periodical payments and it appears to him that the order would have been varied or suspended if the judgment debtor had made an application for that purpose,
make a new order for payment of the amount due under the original order, together with the costs of the Examination Summons, the interest and surcharge payable, either at a specified time or by instalments;
(2) where the judgment debtor fails to attend, adjourn the Examination Summons to a specified time on a specified day and order the judgment debtor to attend at that time on that day; and
(3) where the judgment debtor, having been ordered under paragraph (2) to attend at a specified time on a specified day, fails to do so, the court may issue a warrant of arrest against him.
10. After the conclusion of the Examination Summons, the judgment creditor may then decide on how to proceed with the enforcement process, and if deemed appropriate, may apply for leave to issue a Committal Summons set out below.
Committal process
11. The procedures under Order 52 of RHC are applicable to an application for the committal of a judgment debtor. The judgment creditor must first apply ex parte to a judge for leave to apply for an order of committal. The leave application must be supported by:
(1) A statement as provided by Order 52 rule 2(2) setting out the name and description of the judgment creditor, the name, description and address of the judgment debtor sought to be committed, the terms of the order which the judgment debtor has defaulted, the particulars of the default, and the factual basis showing that the judgment debtor (a) has or has had since the date of the order the means to pay the sum in respect of which he has made default; and (b) has refused or neglected, or refuses or neglects, to pay the sum (“the Statement”); and
(2) An affidavit as provided by the same rule 2(2) verifying the facts relied on as set out in the Statement (“the Supporting Affidavit”), together with all the exhibits relied on which must include a copy of the order.
12. After the court grants leave, the judgment creditor should issue an inter parte summons (“the Committal Summons”) in accordance with Rule 90(1) of MCR setting out the grounds on which leave for making an application for an order of committal has been granted.
13. When the Committal Summons is served on the judgment debtor, it should be accompanied with a warning notice in both English and Chinese in the form annexed to this Guidance Note as “B”.
14. In determining a Committal Summons, the court may, in its discretion, make an order for committal against the judgment debtor if it is satisfied that the judgment debtor-
(1) has or has had since the date of the order the means to pay the sum in respect of which he has made default; and
(2) has refused or neglected, or refuses or neglects, to pay the sum.
Extended application
15. Although the Court of Appeal’s judgment in YBL only focused on the constitutionality of the judgment summons procedure under Rule 87 of MCR, Order 90A of the Rules of the District Court, Cap 336H (“RDC”) also makes provisions for a similar judgment summons procedure applicable to the Guardianship of Minors Ordinance, Cap 13, the Separation and Maintenance Orders Ordinance, Cap 16, and the Maintenance Orders (Reciprocal Enforcement) Ordinance, Cap 188.
16. Given the substantial similarities, the principles discussed in YBL may equally be applicable to the judgment summons procedure under Order 90A of RDC. Thus, this Guidance Note should also be regarded as applicable to the judgment summons procedure under Order 90A of RDC.
Existing judgment summonses
17. All pending judgment summonses would, subject to any submissions to the contrary and any order of the court, be treated as Examination Summonses.
Commencement
18. This Guidance shall come into effect on 11 February 2019.
Dated this 18th day of January 2019
| (Johnson Lam) | |
| Vice President of the Court of Appeal | |
| Chairman of the Family Proceedings | |
| Court Users’ Committee |
Annex A: Warning Notice accompanying a Judgment Summons
(Examination Summons)
Annex B: Warning Notice accompanying a Committal Summons
WARNING NOTICE ACCOMPANYING A JUDGMENT SUMMONS (EXAMINATION SUMMONS)
IMPORTANT NOTICE TO A JUDGMENT DEBTOR
1. (a) You have just been served with a Judgment Summons in Form 23 of the Matrimonial Causes Rules, Cap 179A, together with the supporting Affidavit/Affirmation.
(b) These documents are IMPORTANT DOCUMENTS. You should read them carefully to understand the nature and cause of the case against you.
(c) If these documents are in a language which you do not understand, you may contact the Judgment Creditor immediately to seek a translation of them. If you are otherwise unable to read or understand any documents, you may contact the Family Court Registry at M2, Wanchai Law Courts, Wanchai Tower, 12 Harbour Road, Hong Kong (Tel.: 2840 1218, Fax: 2523 9170) for assistance.
2. Despite the standard wording of the Judgment Summons, the Judgment Creditor ONLY seeks at the hearing of the Summons to examine you on oath regarding the means you have or have had since the date of the Court Order now being enforced against you (“the Order”) to pay the sum in payment of which you have made default.
3. The Judgment Creditor does NOT require you to show cause at the hearing of the Judgment Summons why you should not be committed to prison for such default.
4. At the hearing of the Summons, you will be orally examined on the following questions-
(a) whether any and, if so, what debts are owing to you, and
(b) whether you have any and, if so, what property or means of satisfying the Order now being enforced by the Judgment Creditor,
and the Court may also order you to produce any books or documents in your possession in relation to these questions at the time and place appointed for the examination.
5. If your financial circumstances have changed since the making of the Order by the Court, and/or you have other reasons for not being able to comply with the Order, you have the right to ask the Court to vary, discharge, or to suspend any provisions of the Order temporarily, and you should make such an application immediately. Your application should be accompanied with supporting documents and should be served on the Judgment Creditor or his/her solicitors.
6. (a) YOU ARE ADVISED TO CONSULT A LAWYER TO SEEK LEGAL ADVICE AND ASSISTANCE IMMEDIATELY.
(b) If you do not have the means to instruct a private lawyer, you may apply for legal aid. The contact details of the Legal Aid Department are:-
(1) Headquarters
25/F, Queensway Government Offices
66 Queensway
Hong Kong(2) Kowloon Branch Office
G/F, Mongkok Government Offices
30 Luen Wan Street
Mong Kok
KowloonBy Tel.: (852) 2537 7677
E-mail: ladinfo@lad.gov.hk
[SET OUT CHINESE VERSION OF THE WARNING NOTICE]
WARNING NOTICE ACCOMPANYING
A COMMITTAL SUMMONS
IMPORTANT NOTICE TO A JUDGMENT DEBTOR
1. (a) You have just been served with a Committal Summons issued under Order 52 rule 3(1) of the Rules of the High Court (Cap 4A) together with the supporting Statement and Affidavit/Affirmation.
(b) These documents are IMPORTANT DOCUMENTS. You should read them carefully to understand the nature and cause of the case against you.
(c) If these documents are in a language which you do not understand, you may contact the Judgment Creditor immediately to seek a translation of them. If you are otherwise unable to read or understand any documents, you may contact the Family Court Registry at M2, Wanchai Law Courts, Wanchai Tower, 12 Harbour Road, Hong Kong (Tel.: 2840 1218, Fax: 2523 9170) for assistance.
2. By the Committal Summons, the Judgment Creditor is seeking an order of committal against you.
3. (a) You are not obliged to file or give evidence at the committal hearing.
(b) You are presumed innocent until proven guilty according to law. You are entitled to a fair and public hearing.
(c) You have the right to be tried in your presence, and to defend the Committal Summons in person or through your lawyer.
(d) You are entitled to call witnesses to testify on your behalf and you have the right to cross examine the witnesses who testify against you.
4. If you wish to have more time for the preparation of your defence and to communicate with your lawyer, you should inform the Judgment Creditor and the Court as soon as possible.
5. If it is proved to the satisfaction of the Court beyond reasonable doubt that:
(a) You have or have had since the date of the Court Order now being enforced against you (“the Order”) the means to pay the sum in respect of which you have made default; and
(b) You have refused or neglected, or refuse or neglect, to pay the sum,
YOU MAY BE SENT TO PRISON FOR A PERIOD OF TIME TO BE DETERMINED BY THE COURT.
6. If your financial circumstances have changed since the making of the Order by the Court, and/or you have other reasons for not being able to comply with the Order, you have the right to ask the Court to vary, discharge, or to suspend any provisions of the Order temporarily, and you should make such an application immediately. Your application should be accompanied with supporting documents and should be served on the Judgment Creditor or his/her solicitors.
7. (a) YOU ARE ADVISED TO CONSULT A LAWYER TO SEEK LEGAL ADVICE AND ASSISTANCE IMMEDIATELY.
(b) If you do not have the means to instruct a private lawyer, you may apply for legal aid. The contact details of the Legal Aid Department are: -
(1) Headquarters
25/F, Queensway Government Offices
66 Queensway
Hong Kong(2) Kowloon Branch Office
G/F, Mongkok Government Offices
30 Luen Wan Street
Mong Kok
KowloonBy Tel.: (852) 2537 7677
E-mail: ladinfo@lad.gov.hk
[SET OUT CHINESE VERSION OF THE WARNING NOTICE]