PD38 Reciprocal Enforcement Of Mainland And Hong Kong Judgments In Civil And Commercial Matters

PRACTICE DIRECTION – 38

RECIPROCAL ENFORCEMENT OF

MAINLAND AND HONG KONG JUDGMENTS

IN CIVIL AND COMMERCIAL MATTERS

A.   Introduction

1. This Practice Direction governs the practice and procedure for:

 

(1) the registration of Mainland Judgments given on or after 29 January 2024 under the Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance (Cap. 645) (“the Ordinance”) and its rules (Cap. 645A) (“the Rules”); and

 

(2) the application for certified copies of Hong Kong Judgments and Registrar’s Certificates under the Ordinance and the Rules to facilitate recognition and enforcement in the Mainland.

 

2. For the recognition and enforcement of Mainland Judgments under the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (Cap. 639), please refer to PD-SL10.5.

3. To seek registration in Hong Kong of a Mainland Judgment in civil or commercial matters under Part 2 of the Ordinance, section B below applies.

4. To seek a certified copy of a Hong Kong Judgment and a Registrar’s Certificate under section 34, Part 3 of the Ordinance to facilitate recognition and enforcement of the Hong Kong Judgment in the Mainland, section C below applies.

B.      Mode of application under Part 2 of the Ordinance and Part 2 of the Rules for the registration of a Mainland Judgment

5. Under section 10 of the Ordinance, a judgment creditor under a Mainland Judgment in a civil or commercial matter may apply to the Court of First Instance for a registration order.

6. Pursuant to rule 4(1) of the Rules, all such applications must be commenced by an ex parte originating summons in Form No. 11 in Appendix A to the Rules of the High Court (Cap. 4A), with the title as shown in Annexure 1.

7. The originating summons must be:

 

(1) supported by an affidavit containing the particulars and exhibits as required under Division 2, Part 2 of the Rules, exhibiting (a) a copy of the Judgment duly sealed by the original Mainland court (rule 5(2)(a)); and (b) a certificate from the original Mainland court certifying that the subject judgment is a Mainland Judgment in a civil or commercial matter that is effective in the Mainland (rule 5(2)(b)) (for a sample affidavit, see Annexure 2[1]);

(2) accompanied by a draft order for registration (for a sample order, see Annexure 3);

 

(3) accompanied by a draft notice of registration (for a sample notice, see Annexure 4);

 

(4) accompanied by a duly completed form containing particulars of the Mainland Judgment (see Annexure 5); and

 

(5) accompanied by a statement of costs (rule 6(4)(b)) in the form provided under PD 14.3 for a summary assessment of costs.

 

8. If the Mainland Judgment contains a provision for interest for which registration is sought, the applicant is required to provide proof of the rate of interest and the amount due at the time of registration (see section 18(2)(a) of the Ordinance).  Accordingly, if the application for registration is granted, the applicant shall provide evidence of the prevailing rate of interest at the time the draft order is re-submitted for the Court’s approval to effect the registration.

9. If the sum payable under the Mainland Judgment is in a currency other than the Hong Kong dollar, the applicant is required to provide the exchange rate prevailing on the date of registration (see section 19(2) of the Ordinance).  Accordingly, if the application for registration is granted, the applicant shall provide evidence of the prevailing exchange rate at the time the draft order is re-submitted for the Court’s approval to effect the registration.

10. Applicants for an ex parte registration order must recognise that they have a continuing duty of making a full and frank disclosure.  Even after the initial submission of the application, they are still required to keep the Court informed, by way of supplemental affidavits, of any latest developments in the case, in particular where there is further evidence that comes to their attention which is relevant to the validity and / or enforceability of the Mainland Judgment to be registered. The Applicant must immediately inform the court if there is any change of circumstances that would render the basis for granting the registration order no longer valid and sustainable (e.g. where the Mainland Judgment is stayed or set aside, etc.).

11. After the registration order has been granted, the applicant must serve a notice of registration on all the parties against whom the Mainland Judgment may be enforced(see section 13(3) of the Ordinance) in the manner as prescribed under rule 16 of the Rules.

C.      Application for a certified copy of a Hong Kong Judgment under section 33 and a Registrar’s Certificate under section 34, Part 3 of the Ordinance and rules 22 and 23 of the Rules to facilitate recognition and enforcement in the Mainland

12. Under section 33 of the Ordinance, a judgment creditor under a Hong Kong Judgment in a civil or commercial matter may apply for a certified copy of the Judgment to facilitate its recognition and enforcement in the Mainland. All such applications are to be made to:

 

(a) if the Judgment was given by the Court of Final Appeal – the Court of Final Appeal Registry;

 

(b) if the Judgment was given by the Court of Appeal or the Court of First Instance – the High Court Registry;

 

(c) if the Judgment was given by the Competition Tribunal – the Competition Tribunal Registry;

 

(d) if the Judgment was given by the District Court – the District Court Registry;

 

(e) if the Judgment was given by the Lands Tribunal – the Lands Tribunal Registry;

 

(f) if the Judgment was given by the Labour Tribunal – the Labour Tribunal Registry; or

 

(g) if the Judgment was given by the Small Claims Tribunal – the Small Claims Tribunal Registry.

 

13. (1) An application for a certified copy of a Hong Kong Judgment shall be made ex parte in the same action or proceedings in which the Hong Kong Judgment was granted, with

 

(a) a supporting affidavit with the words “For processing by Registrar” clearly marked on top; and

 

(b) an accompanying draft Registrar’s Certificate and the necessary enclosures (for a sample certificate, see Annexure 6).

     (2) There must be included in the affidavit:

 

(a) a statement verifying that the matters set out in the draft Registrar’s Certificate are true and correct to the best of the deponent’s information or belief; and

 

(b) an undertaking to notify the Registrar of the specified Hong Kong court to which the application is made by supplemental affidavit(s) as soon as practicable when there has been a change of circumstances rendering certain matters stated in the said draft Certificate no longer true or correct.

 

14. The affidavit should provide the information as required in rule 21(2) of the Rules, inter alia, confirming that no stay of execution of the Hong Kong Judgment is in force.

D.      Commencement

15. This Practice Direction shall come into effect on 29 January 2024.

Dated this 25^th day of January 2024.

Annexure 1

Annexure 2

Annexure 3

Annexure 4

Annexure 5

Annexure 6