Content

Pre-Action Consideration........................................................................................................... 7
Amount of Claims .............................................................................................................. 7
Limitation Period ................................................................................................................ 7
Contract ....................................................................................................................... 7
Tort .............................................................................................................................. 7
Fraud............................................................................................................................ 7
Death and Personal Injury ........................................................................................... 7
Legal Aid ............................................................................................................................ 8
Ordinary Scheme ......................................................................................................... 8
Mean Test ............................................................................................................. 8
Supplementary Scheme ............................................................................................... 9
Mean Test ............................................................................................................. 9
Merit Test ........................................................................................................... 10
Legally Aided Person’s Liability for Costs ............................................................... 11
Cost Only Proceeding ....................................................................................................... 11
Commencement ....................................................................................................................... 15
Writ ................................................................................................................................... 15
Service the Writ within Hong Kong ................................................................................. 15
Leaving a Copy to the Person to be Served .............................................................. 15
Registered Post or Interesting through Letter Box .................................................... 16
Substituted Service within Hong Kong ............................................................................ 16
Example of Substituted Service ................................................................................ 17
Deemed Valid Service ...................................................................................................... 17
Service Outside Hong Kong ............................................................................................. 17
1st Seaconsar Far Consideration ............................................................................... 18
2nd Seaconsar Far Consideration .............................................................................. 18
3rd Seaconsar Far Consideration............................................................................... 19
Service on Limited Companies in Hong Kong ................................................................. 19
Service on Limited Companies outside Hong Kong ........................................................ 19
Service on Partnership ...................................................................................................... 19
Pleading.................................................................................................................................... 20
Function of Pleadings ....................................................................................................... 20
Types of Pleadings............................................................................................................ 20
Close of Pleadings ............................................................................................................ 20
Failure to Reply the Defence ............................................................................................ 20
Timing of Filing of Pleadings [Deadlines] .............................................................................. 21
Registered Post or Interesting through Letter Box ........................................................... 21
Acknowledgement of Service ........................................................................................... 21
Filing of Statement of Claim ............................................................................................ 21
Filing of Defence or Counterclaim ................................................................................... 22
Filing of Reply or Defence to Counterclaim .................................................................... 22
Summer Vacation ............................................................................................................. 22

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Third Party Proceedings ........................................................................................................... 25
Procedure .......................................................................................................................... 25
Joining Third Party as 2nd Defendant ............................................................................... 25
Summary Judgment [By Plaintiff] [May also Strike Out] [Exception to Fraud] ..................... 26
Conditions for Granting Summary Judgment ................................................................... 26
Fraud Exceptions [ABOLISHED SINCE 1 DECEMBER 2021] .................................... 27
Procedure .......................................................................................................................... 27
Possible Consequences ..................................................................................................... 28
Cost Consequence............................................................................................................. 28
Defendant’s Counterclaim ................................................................................................ 29
Interim Payment ............................................................................................................... 29
Strike Out [Apply Summary Judgment first because faster] [P.193 Dave Lau] ...................... 30
Default Judgment ..................................................................................................................... 31
Default on Notice of Intention to Defend (O.13 RDC/RHC) [Late AOS] ....................... 31
Default on Service of Defence (O.19 RDC/RHC) ........................................................... 31
Liquidated or Unliquidated ............................................................................................... 32
Liquidated Demand .......................................................................................................... 33
Unliquidated Damages ..................................................................................................... 33
Mixed Claims ................................................................................................................... 33
Procedure .......................................................................................................................... 33
Setting Aside Default Judgement ..................................................................................... 34
Regular Judgment ...................................................................................................... 34
Irregular Judgment .................................................................................................... 35
Cost for Setting Aside ............................................................................................... 36
Undelivered Post Returned........................................................................................ 36
Admissions of Money Claims (O.13A RDC/RHC) ................................................................. 37
Request for Time to Pay ................................................................................................... 37
Interlocutory Applications ....................................................................................................... 39
Inter Partes Application .................................................................................................... 39
Ex Parte Application ......................................................................................................... 39
Urgency ..................................................................................................................... 39
Secrecy ...................................................................................................................... 39
Full and Frank Disclosure ......................................................................................... 39
Interlocutory Injunction .................................................................................................... 40
Conditions for Interlocutory Injunction .................................................................... 40
Serious Issue to be Tried .................................................................................... 40
Balance of Convenience .................................................................................... 40
Undertaking in Damages.................................................................................... 41
Usual Equitable Principles ................................................................................. 41
Mandatory Injunction ................................................................................................ 41
Extension of Time ............................................................................................................ 42
Unless Order ..................................................................................................................... 42
Paying a Sum to the Court ................................................................................................ 43
Mareva Injunction (Freezing Order) [Post-judgment - also Charging Order?] ................ 43
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 Conditions for Mareva Injunction ............................................................................. 43
Good Arguable Case .......................................................................................... 44
Cause of Action in the Jurisdiction .................................................................... 44
Real Risk of Dissipating Assets ......................................................................... 44
Assets within the Jurisdiction ............................................................................ 44
Balance of Convenience .................................................................................... 44
Full and Frank Disclosure .................................................................................. 45
Cross Undertaking to Damages ......................................................................... 45
Ancillary Orders ........................................................................................................ 45
Anton Piller Order ............................................................................................................ 46
Conditions for Anton Piller Order ............................................................................. 46
Extremely Strong Prima Facie Case .................................................................. 46
Serious Interest................................................................................................... 46
Real Possibility of Destroying ........................................................................... 46
Proportionality ................................................................................................... 47
Balance of Convenience .................................................................................... 47
Full and Frank Disclosure .................................................................................. 47
Cross Undertaking to Damages ......................................................................... 48
Privilege Against Self-incrimination ......................................................................... 48
Prohibition Order (Pre-action or Pre-judgment) ............................................................... 48
Security for Costs [Used by Defendant] ........................................................................... 48
Grounds for O.23 RDC/RHC [Can be used for both Company and Individual] ...... 49
Grounds for s905 [Only for Company] ..................................................................... 49
Plaintiff is Ordinarily Resident Out of the Jurisdiction (O.23) ................................. 49
Court’s Discretion ..................................................................................................... 50
Substantial Assets or Property within Hong Kong ............................................ 50
Balancing Exercise............................................................................................. 50
Stifle the Plaintiff’s Genuine Claim ................................................................... 50
Legally Aided Plaintiff ....................................................................................... 50
Reciprocal Enforcement Agreement .................................................................. 51
Late and Early Application ................................................................................ 51
Security for Cost When Seeking an Appeal .............................................................. 51
Procedure ................................................................................................................... 51
Discovery ................................................................................................................................. 53
Requirements .................................................................................................................... 53
Documents ................................................................................................................. 53
Relevance .................................................................................................................. 53
Existence ................................................................................................................... 54
Possession, Custody or Power Relating to the Action .............................................. 54
Exceptions ................................................................................................................. 54
Legal Professional Privilege .............................................................................. 54
Legal Advice Privilege ....................................................................................... 54
Litigation Privilege ............................................................................................ 54
Without Prejudice Communications .................................................................. 55
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 Not Exceptions .......................................................................................................... 55
Automatic Discovery ........................................................................................................ 55
Lists of Documents.................................................................................................... 55
Relief of Automatic Discovery ................................................................................. 56
Failure to Undergo Automatic Discovery ........................................................................ 56
Further and Better List .............................................................................................. 56
Order for Specific Discovery .................................................................................... 56
Order for General Discovery ..................................................................................... 57
Discovery Against Third Party ......................................................................................... 57
Norwich Pharmacal Order (Post-writ & Pre-writ) .................................................... 57
s42 HCO, s47B DCO (Post-writ) .............................................................................. 58
Pre-Action Discovery ....................................................................................................... 59
Norwich Pharmacal Order (Post-writ & Pre-writ) .................................................... 59
s41(1) HCO and s47(1) DCO (Pre-writ) ................................................................... 59
Documents Refers to in Pleadings, Affidavit, etc ............................................................ 60
Interrogatories ................................................................................................................... 60
Case Management .................................................................................................................... 61
Compel a Party to Comply with a Deadline ..................................................................... 61
Failure to Comply – Before Case Management Summons ....................................... 61
Failure to Comply – After Case Management Summons ......................................... 61
Application for Relief................................................................................................ 61
Unless Order .............................................................................................................. 62
Timeline of Civil Proceedings .......................................................................................... 62
Close of Pleadings ............................................................................................................ 62
Discovery .......................................................................................................................... 63
Timetabling Questionnaire ............................................................................................... 63
Mediation Certificate ........................................................................................................ 63
Case Management Summons............................................................................................ 64
Case Management Conference ......................................................................................... 64
Case Settlement Conference (CSC) in District Court Actions ......................................... 65
Pre-trial Review ................................................................................................................ 65
Failure to Appear in CMC or PTR ................................................................................... 65
Variation of Timetable...................................................................................................... 66
Variation of Milestone Date ...................................................................................... 66
Not a Valid Ground for Varying Milestones ...................................................... 66
Valid Ground for Varying Milestones ................................................................ 66
Variation of Non-Milestone Date .............................................................................. 67
Sanctions for Non-compliance .................................................................................. 67
Witness Statements ........................................................................................................... 67
Timing of Exchange of Witness Statement ............................................................... 67
Calling a Witness Who Gives Witness Statement .................................................... 67
Calling a Witness Who Did Not Give Witness Statement ........................................ 68
Not Calling a Witness Who Gives Witness Statement ............................................. 68
Expert Evidence ................................................................................................................ 68
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 Conditions to Adduce Expert Evidence .................................................................... 69
Procedure ................................................................................................................... 69
Expert’s Duty to the Court ........................................................................................ 69
Settlement ................................................................................................................................ 71
Negotiations Through Lawyers ........................................................................................ 71
Negotiations by the Lay Clients ....................................................................................... 71
“Without Prejudice” Negotiations .................................................................................... 71
Subject to Contract ........................................................................................................... 72
Dismissal of Actions ......................................................................................................... 72
Withdrawal and Discontinuance ....................................................................................... 72
Alternative Dispute Resolution ........................................................................................ 73
Mediation .......................................................................................................................... 73
Refusing Mediation ................................................................................................... 74
Reaching Agreement ................................................................................................. 74
Sanctioned Offers and Sanctioned Payments .......................................................................... 75
Sanctioned Payments or Sanctioned Offers? .................................................................... 75
Sanctioned Offers ............................................................................................................. 76
Sanctioned Payments ........................................................................................................ 76
Procedure for Acceptance ................................................................................................. 77
Offer and Payment Not Less Than 28 days Before Trial .......................................... 77
Offer and Payment Less Than 28 days Before Trial ................................................. 77
Withdraw or Reduction ............................................................................................. 77
Notice of Acceptance ................................................................................................ 77
Consequences of Acceptance and Non-acceptance .......................................................... 77
Acceptance of Sanctioned Offer or Sanctioned Payment by the Plaintiff ................ 77
Acceptance of Sanctioned Offer by the Defendant ................................................... 78
Non-acceptance by Plaintiff ...................................................................................... 79
Non-acceptance by Defendant .................................................................................. 80
Court’s Residual Discretion ...................................................................................... 81
Calderbank Offer .............................................................................................................. 82
Cost .......................................................................................................................................... 83
Party and Party Basis ........................................................................................................ 83
Common Fund Basis ........................................................................................................ 83
Indemnity Basis ................................................................................................................ 84
Costs Arising from Misconduct or Neglect ...................................................................... 85
Wasted Costs .................................................................................................................... 85
Sanderson/Bullock Order ................................................................................................. 86
Enforcement ............................................................................................................................. 87
O.48 and O.49A RDC/RHC ............................................................................................. 87
Oral Examination - O.48 RDC/RHC......................................................................... 87
Oral Examination - O.49B RDC/RHC ...................................................................... 88
After Oral Examination ............................................................................................. 89
Writ of Fieri Facias ........................................................................................................... 89
Garnishee Order ................................................................................................................ 90
Page 5 of 93
Charging Order ................................................................................................................. 90
Appointment of a Receiver ............................................................................................... 91
Writ of Sequestration, Committal Proceedings ................................................................ 92
Enforcement on Partnership ............................................................................................. 92
Prohibition Order (Pre-action or Pre-judgment) ............................................................... 92

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 Pre-Action Consideration

Amount of Claims
DC has non-exclusive jurisdiction over any monetary claim above $75,000 but not exceeding
$3,000,000 founded in contract, quasi contract or tort (s32 DCO). On the other hand, CFI has
unlimited civil jurisdiction (s3 HCO).

However, it is possible for the Plaintiff to abandon part of the claim in excess of $3,000,000 in
order to start the trial in DC (s34 DCO). This could save legal costs, for instance, the hourly
rate for solicitors in DC is lower than that of CFI.

Limitation Period
Late claims initiated by the Plaintiff may be time-barred. The Limitation Ordinance stated the
limitation period for different types of claims.

Contract
Under s4(3) Limitation Ordinance, a claim for contract under seal has a limitation period of 12
years upon breach of the contract. For simple contracts, the limitation period is 6 years upon
breach of the contract (s4(1) Limitation Ordinance).

Tort
Under s4(1) Limitation ordinance, a claim for tort apart from personal injury and death has a
limitation period of 6 years upon damage being sustained as a result of the tortious act. As
elaborated by Ribeiro PJ in Kensland Realty Ltd (in liq) v Tai, Tang & Chong (2008) 11
HKCFAR 237, the 6 years period starts when the damage is real and actual, as distinct from
minimal, negligible and purely contingent,

For latent damage in a negligence action apart from personal injury or death, the usual
limitation period of 6 year period can be extended by 3 years from the date on which the
Plaintiff first had actual or constructive knowledge required for bringing the action (s31(4)
Limitation Ordinance). Yet, it is subject to an overriding time limit of 15 years from the date
of the alleged negligent act under s32 Limitation Ordinance (Kensland Realty Ltd (in liq) v Tai,
Tang & Chong (2008) 11 HKCFAR 237).

Fraud
For actions based on fraud (or any action deliberately concealed from the plaintiff by the
defendant or the action is for relief from the consequences of a mistake), the limitation period
does not begin to run until the Plaintiff has discovered the fraud/concealment/mistake or could,
with reasonable diligence discovered it (s26 Limitation Ordinance).

Death and Personal Injury

Under s27(4) Limitation ordinance, a claim for personal injury has a limitation period of 3
years from the date of accrual of the cause of action or the date of the plaintiff’s actual or

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constructive knowledge (if later) of the injury being significant and attributable to the
defendant’s negligent act/omission as well as the identity of the defendant.

For death claims under the Fatal Accidents Ordinance, the limitation period of 3 years starts
from the date of the death or the date of the actual or constructive knowledge of the beneficiary
of the claim, whichever is later (s28(3) Limitation Ordinance).

However, for death and personal injury claims, s30 Limitation Ordinance shall apply. The
Court has discretion to override the 3 years’ limit by balancing the respective prejudices to the
Plaintiff and to the Defendant having regard to all the circumstances of the case and the
different factors, such as the length of, and the reasons for, the delay on the part of the Plaintiff;
the extent to which, having regard to the delay, the evidence adduced or likely to be adduced
by the Plaintiff or the Defendant is or is likely to be less cogent than if the action had been
brought within the time; the conduct of the Defendant after the cause of action arose; the
duration of any disability of the Plaintiff arising after the date of the accrual of the cause of
action; the extent to which the Plaintiff acted promptly and reasonably once he knew whether
or not the act or omission of the defendant, to which the injury was attributable, might be
capable at that time of giving rise to an action for damages; the steps, if any taken by the
plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he
may have received.

For persons under disability (i.e. infants or persons of unsound mind), the limitation period
does not run until that person ceases to be under disability or dies.

Legal Aid
Legal aid is available to any natural person in Hong Kong, including both resident or non-
resident, excluding body corporate or unincorporated (s2 Legal Aid Ordinance). Solicitor is
obligated to inform the client on the availability of lead aid (Hong Kong Solicitors' Guide to
Professional Conduct 4.01). To receive legal aid, both the mean test and merit test should be
satisfied.

Ordinary Scheme

Mean Test
For the ordinary scheme, under Part 1 Schedule 2 Legal Aid Ordinance, legal aid covers civil
proceedings on
1. Civil proceedings in any of the following Courts—
(a) Court of Final Appeal;
(b) Court of Appeal;
(c) Court of First Instance;
(d) District Court.
2. Civil proceedings before any person to whom a case is referred in whole or in part by any
of the said Courts.

Page 8 of 93
3. Inquests into deaths under the Coroners Ordinance (Cap. 504) where, following a request
for legal aid in that behalf by the family of the deceased person concerned, the Director is
of the opinion that the interests of public justice require that legal aid be given.
4. Proceedings in the Lands Tribunal under Part II of the Landlord and Tenant
(Consolidation) Ordinance (Cap. 7).
5. Negotiations prior to the issue of legal proceedings, including mediation, and for the
payment of compensation by the Motor Insurers’ Bureau for which no legal proceedings
are issued.
6. An application to the Mental Health Review Tribunal.

For the ordinary scheme, under Part 2 Schedule 2 Legal Aid Ordinance, legal aid does not
cover civil proceedings on
1. defamation, other than the defence of a counterclaim alleging defamation
2. proceedings where the only question to be brought before the Court is as to the time and
mode of payment by him of debt (including liquidated damages) and costs;
3. proceedings involving money claims in derivatives of securities, currency futures or other
futures contracts (unless the person seeking legal aid was induced to deal in the derivatives
of securities, currency futures or other futures contracts by fraud, deception or
misrepresentation;
4. proceedings for the recovery of a loan made in the ordinary course of a business conducted
by the person seeking legal aid;
5. proceedings involving disputes between limited companies or their shareholders regarding
the respective rights of the company and the shareholders;
6. proceedings arising out of disputes over partnerships;
7. proceedings for the taxation of costs, unless the person seeking legal aid was previously
aided in the action for which an order for costs was made.

Concerning the mean test, the scheme is available for any person whose financial resources do
not exceed $420,400 (increased from $307,130 since 26 June 2020).

Aided persons with financial resources not exceeding 12.5% of the financial eligibility limit
are exempted from making contributions under the Ordinary Scheme. For those with financial
resources exceeding 12.5% of the financial eligibility limit, they will need to contribute 2%-
25% of their financial resources, according to Schedule 3 of the Legal Aid (Assessment of
Resources and Contributions) Regulations.

Supplementary Scheme

Mean Test
For the supplementary scheme, it covers only the proceeding on
1. Employees’ compensation claims;
2. Personal injuries or death claims;
3. Medical, dental or legal professional negligence

Page 9 of 93
4. Professional negligence claims against certified accountants, registered architects,
registered professional engineers, registered professional surveyors, registered
professional planners, authorised land surveyors, registered landscape architects and estate
agents
5. Negligence claims against insurers or their intermediaries in respect of taking out of
personal insurance products
6. Claims against vendors in relation to sale and purchase of first-hand residential property
provided that the claim is likely to exceed $75,000 (increased from the previous figure of
$60,000).

It covers also claims brought by employees and representation for employees in appeals against
awards made by the Labour Tribunal (irrespective of amount of dispute)

Concerning the mean test, the scheme is available for any person whose financial resources
exceed $420,400 but do not exceed $2,102,000 (increased from $1,535,650 since 26 June 2020).

An interim contribution is payable and the amount of contribution would depend on the type
of proceedings (s18 and s32 of the Legal Aid Ordinance). If the claim succeeds, a certain
portion of damages recovered shall be paid into the Supplementary Legal Aid Fund.

Merit Test
Under s10(3) Legal Aid Ordinance, a person shall not be granted a legal aid certificate in
connection with any proceedings unless he shows that he has reasonable grounds for taking,
defending, opposing or continuing such proceedings or being a party thereto.

“Reasonable grounds for taking, defending, opposing or continuing such proceedings” means
there is a reasonable, as opposed to fanciful, chance that a Court of trial would decide the issue
in the applicant’s favour (Ng Ai Kheng Jasmine v Master M Yuen [2004] HKCU 289). Such
a threshold should be lower than an even chance of success (Chung Yuk Ying v The Registrar
of the High Court [2013] 5 HKLRD 78).

Director of Legal Aid has the discretion to refuse legal aid if he believes that
1. only a trivial advantage would be gained by the applicant from such proceedings;
2. on account of the simple nature of the proceedings a solicitor would not ordinarily be
employed;
3. it is unreasonable that the applicant should be granted legal aid in the particular
circumstances of the case;
4. since making the application the applicant has departed Hong Kong and remained outside
Hong Kong for any continuous period of 6 months;
5. the applicant has failed to comply with a requirement of the Director made under section
9(b) or (c) (i.e. requirement to furnish documents or attend personally before the Director
of Legal Aid);
6. the applicant has allowed an offer or legal aid to lapse or has indicated that he wishes to
withdraw his application; or
Page 10 of 93
7. there are other persons concerned jointly with, or having the same interest as, the applicant
in seeking a substantially similar outcome of the proceedings unless the applicant would
be prejudiced by not being able to take his own or joint proceedings.

Legally Aided Person’s Liability for Costs

If the Plaintiff receives legal aid and loses the case, his costs will be borne by the Director of
Legal Aid.

If the Defendant receives legal aid and loses the case, and is subsequently ordered to pay the
Plaintiff’s costs, neither he nor the Director of Legal Aid would be liable for such costs unless
the Defendant had paid a contribution which exceeds the legal costs spent by the Director of
Legal Aid, and in such case the amount of the excess (up to the contribution made) will be paid
to the Plaintiff (s16 Legal Aid Ordinance)

If the legally aided person wins, the recovered costs will be paid to the Director of Legal Aid
to repay the costs spent and if there is a shortfall, the aided person will have to make it up from
the award recovered from the proceedings.

The Director of Legal Aid has the discretion to reduce the amount to be repaid by the aided
person if hardship will be caused to him (s19B(2) Legal Aid Ordinance).

However, if the legal aid is obtained by fraud or misrepresentation, or the aided person acted
improperly in the proceeding, the Court may order that person to pay his own cost or the
opposite pasty’s cost, or the Director of Legal Aid’s cost (s17(1) Legal Aid Ordinance).

Cost Only Proceeding

A cost only proceeding can be commenced if the parties have agreed all issues in dispute
including who is to pay for the costs and such an agreement is confirmed in writing, and no
proceedings has been commenced (s52B HCO, s53B DC). This provision can be invoked when
there is only dispute in relation to legal costs.

The proceeding can be commenced by originating summons. The parties should file an
affidavit exhibiting the agreement between parties and the bill of costs (O.62 r.11A RDC/RHC).

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 Default Judgment

Default on Notice of Intention to Defend (O.13 RDC/RHC) [Late AOS]

The Plaintiff may enter a default judgment if the Defendant fails to give notice of intention to
defend (most likely failure to file AOS on time under O.12 r. 5 RDC/RHC, or file AOS with
an intention not to defend) for the following classes of claims without the leave of the Court-

(1) a claim for a liquidated demand (O.13 r.1 RDC/RHC);

(2) a claim for unliquidated damages (O.13 r.2 RDC/RHC);
(3) a claim for detention of goods (O.13 r.3 RDC/RHC);
(4) a claim for possession of land (O.13 r.4 RDC/RHC); and
(5) mixed claims, consisting of two or more of the above classes of claims only (O.13 r.5
RDC/RHC).

Other types of claims should follow O.13 r.6 RDC/RHC and the Plaintiff has to proceed with
a statement of claim and treat it as if the Defendant had given notice of intention to defend
(unlike Order 19).

Under O.13 r7(1) RDC/RHC, before entering a default judgment, the Defendant should have
acknowledged service; or the writ or an affidavit was filed by the Plaintiff proving proper
service of the writ before entering default judgment; or the Plaintiff produces the writ indorsed
by the defendant’s solicitor with a statement that he accepts service of the writ on the
defendant’s behalf.

The Defendant is deemed to have admitted all factual allegations in the statement of claim if
he is in default in giving notice of intention to defend (Cribb v Freyberger [1919] WN 22).

Default on Service of Defence (O.19 RDC/RHC)

The Plaintiff may enter a default judgment if the Defendant fails to service defence timely (28
days after the deadline for AOS of the writ or 28 days after the service of statement of claim
by the Plaintiff, whichever is later) for the following class of claims-

(1) a claim for a liquidated demand (O.19 r.2 RDC/RHC);

(2) a claim for unliquidated damages (O.19 r.3 RDC/RHC);
(3) claim in detinue (O.19 r.4 RDC/RHC);
(4) a claim for possession of land (O.19 r.5 RDC/RHC); and
(5) mixed claims, consisting of two or more of the above classes of claims only (O.19 r.6
RDC/RHC).

Other types of claims should follow O.19 r.7 RDC/RHC. The Plaintiff may apply to the Court
by summon for default judgment and the Court shall give such judgment as the Plaintiff appears
entitled on his statement of claims, although the Court has the discretion to refuse so.

Page 31 of 93
For applying default judgment under O.19 RDC/RHC, the Plaintiff must serve written notice
to the Defendant not less than 2 clear working days before entering judgment (O.19 r.8A(1)(a)
RDC/RHC). Affidavit confirming the service of the notice is required (O.19 r.8A(1)(b)
RDC/RHC).

In practice, the 2 days notice may be served anytime before judgment even though the Plaintiff
is not yet in default (Ho Yuen Tsan v Hop Wing Transportation Co Ltd [1997] HLRD 46).
When the notice is made before default, the Plaintiff can immediately enter the default
judgment provided that the lapse of the 2 days period (Schindler Lifts (Hong Kong) Ltd v
Ocean Joy Investments Ltd [2002] 1 HKLRD 279). As a matter of strategy, the notice is thus
usually served well before the deadline for service of defence (Dave Lau, 2017).

The 2 days notice is not required if the Court has made an order prescribing or extending the
time for service of defense; or the Defendant does not have a solicitor and has failed to state an
address within the jurisdiction in the proceedings at which he can be served (O.19 r.8A(2)
RDC/RHC).

Liquidated or Unliquidated
Liquidated demand means an amount either already ascertained or capable of being ascertained
by arithmetic calculation. In other words, assessment by the Court is not required (Camille
Cameron, 2008). This includes debt, total failure of consideration, guarantee etc. If the
ascertainment requires investigation beyond mere calculation, then constitutes unliquidated
damages (Knight v Abbott (1883)10 QBD 11).

If a sum is stipulated in the contract that is payable in the event of a breach, it could be a
liquidated demand provided that it is a genuine pre-estimate of the probable damage flowing
from the breach instead of a penalty (i.e. liquidated damages) (Polyset Ltd v Panhandat Limited
[2002] 3 HKLRD 319). Such liquidated damages provision is common in construction
contracts in Hong Kong.

If the amount of claim needs to be assessed by the Court, it is an unliquidated claim. This
includes mostly breach of contract and tort claims. Mere presence of a specific figure does not
render a claim liquidated as the Court has to assess whether the amount should be allowed
(Michael Wilkinson (2017), para 12-15).

Generally speaking, a claim in tort or for breach of contract is generally unliquidated damages
claim even if expressed as a specific figure (Joseph Yen & Co v Luen Cheong Hong (1952) 36
HKLR 215). However, if the claim asks for a complete refund, this involves no assessment
form the Court, and thus it could be liquidated damages.

If a claim is mixed of both liquidated and unliquidated claim, a combination of final and
interlocutory judgment will be entered.

Page 32 of 93
Liquidated Demand
For claims solely for liquidated demand, the Plaintiff can enter final judgment against that
Defendant for a sum not exceeding that claimed by the writ (for default on notice of intention
to defend: O.13 r.1 RDC/RHC; for default on service of defence (O.19 r.2 RDC/RHC). The
final judgment can be enforced immediately (Allan Leung, 2017).

Under s48 HCO and s49 DCO, the Court has the discretion to award interest on the claim for
the pre-judgment period. The Court can decide on the interest rate and part of the claim which
interest can be incurred. The Court can also decide the period of time which interest can be
incurred. Such interest will not make a liquidated demand become unliquidated (for default on
notice of intention to defend: O.13 r.1(2) RDC/RHC; for default on service of defence: O.19
r.2(2) RDC/RHC).

If there are multiple Defendants, the default judgment is obtained only against the one
Defendant who is in default. However, in case of alternative claims, a default judgment entered
against one Defendant is an irrevocable election that bar the action against the alternative
Defendants if the alternatives are based on mutually inconsistent assumptions of fact (Morel
Bros and Co Ltd v Earl of Westmoreland [1904] AC 11; Bonus Garment Co v Karl Rieker
GmbH and Co KG [1997] 2 HKC 460). Yet, default judgment entered on one Defendant will
not bar a claim against another Defendant based on a jointly liability claim (Goei Tsusho Co
Ltd v Leader Engineering and Construction Ltd [2010] 2 HKLRD 1084).

Unliquidated Damages
Interlocutory judgment that relates to the Defendant’s liability will be granted for claim for
unliquidated damages (for default on notice of intention to defend: O.13 r.2 RDC/RHC; for
default on service of defence: O.19 r.3 RDC/RHC), and the damages are assessed in accordance
with O.37 RDC/RHC. The Court will fix a date for the master to assess the damages. Under
Order 37, the damages are assessed by a master and the Defendant should serve at least 7 days’
notice of the hearing (O.37 r.1 RDC/RHC).

The fixed cost for obtaining such default judgment is provided in Part II of Second Schedule
of O.62 RDC/RHC.

Mixed Claims
If the claims consist of both liquidated and unliquidated claims, it is possible to enter final
judgment on the liquidated parts, and interlocutory judgment on the unliquidated parts.

Procedure
Under O.13 r.7 RDC/RHC, Order 13 judgment can be entered when
1. The Defendant has acknowledged service of the writ; or
2. An affidavit is filed proving due service of the writ on the Defendant; or
3. The Plaintiff produced the writ indorsed by the Defendant’s solicitor with a statement that
he accepts service of the writ on the Defendant's behalf.

Page 33 of 93
Setting Aside Default Judgement
There can be no appeal against a default judgment although the Court can set it aside (for
default on notice of intention to defend: O.13 r.9 RDC/RHC; for default on service of defence:
O.19 r.9 RDC/RHC).

The setting aside procedures are different for regular and irregular judgment.

Delay in applying to have a default judgment set aside could be refused as it causes irreparable
mischief to the Plaintiff (O.2 r.2(1) RDC/RHC, Young Bing Ching v Chow Yung Fong [2001]
2 HKLRD 394).

Regular Judgment
Regular judgment is the judgment obtained after the Plaintiff has followed all the relevant rules
in entering the judgment. In such cases, the Court has the discretion to set it aside with regard
to relevant circumstances of each case (Evans v Bartlam [1937] AC 473). The key
consideration is whether the Defendant can prove that he has a “real prospect of success”
(Young Bing Ching v Chow Yung Fong [2001] 2 HKLRD 394). The threshold is higher than
an arguable defence. To set aside a regular judgment, the Defendant has to satisfy the Court
that his case and evidence in support of it carries some degree of conviction, and thus
demonstrate a likelihood of success (Premier Fashion Wears Ltd v Li Hing Chung [1994] 1
HKLR 377).

The Court will also consider whether the Defendant has a reasonable explanation for his failure
to comply with the prescribed deadline (Evans v Bartlam [1937] AC 473). Also, the Court will
consider the Defendant’s conduct after the proceeding was served (e.g. delay in applying
setting aside) and whether prejudice will be caused to the Plaintiff or third parties by setting
aside the judgment (Harbour Hero Enterprises Ltd v Chau Ning Tai [2018] HKCA 253). As a
matter of public policy of finality in litigation, the Court may be reluctant to set aside the
judgment if the Defendant decided to allow the judgment stand and delay his application to set
it aside (Wan How Wan v Wan Hoi Wei [2011] HKEC 240).

Although the threshold of “real prospect of success” was challenged in UK (Allen v Taylor
[1992] 1 PIQR 255) and later in Hong Kong (Guangdong International Trust & Investment
Corp v Yuet Wah (Hong Kong) Wah Fat Ltd [1997] HKLRD 489) that it might be difficult for
the Court to decide if this condition is fulfilled without going through a trial. Yet, the Court
still adopts the “real prospect of success” test recently (Choi Chung Bun Vincent v Australia
China Holdings Ltd [2011] 3 HKLRD 622) athough it should not be applied in a too literal and
dogmatic manner. If there is meritorious (not merely arguable) defence, the Court would set
aside the regular default judgment, and the fault on the part of the Defendant might be punished
by way of cost orders (Michael Wilkinson (2017), para 12-36 to 12-38)

The Court could impose conditions on the judgment although it would be rare (L&M Specialist
Construction Ltd v Wo Hing Construction Co Ltd [2003] 3 HKLRD 262). Such conditions are
imposed if the Court finds that the Defendant’s defence is shadowy.
Page 34 of 93
[For criticism of “real prospect of success” - refer to para 12-40 to 12-47 of Michael
Wilkinson (2017)]

The application should be made by summon supported by an affidavit and will be heard by a
Master (unless the default judgment is granted by a Judge). Although an affidavit
demonstrating merit is not required by the rule, an affidavit verifying the fact which the defence
is based is generally required (GP Vickers v Humanbo Enterprises Ltd HCA 12076/1983).

Irregular Judgment
Irregular judgment is obtained by the Plaintiff when the existence of the writ was not brought
to the Defendant’s notice by the Plaintiff’s service (Chu Kam Lun v Yap Lisa Susanto [1999]
3 HKC 378). This may apply even if the Plaintiff complies with the rules and duly served the
writ. The judgment is also irregular if there is non-compliance on Order 33 when obtaining the
judgment (Dave Lau (2017) page 155). The burden of proof on the irregularity lies on the
Defendant (Bank of China (Hong Kong) Ltd v Cheung King Fung Francis [2007] 1 HKLRD
462). The irregularity should be stated in the summons and affidavit (O.2 r.2(2) RDC/RHC).
The application should also be made within reasonable time and before the party applying has
taken further steps (O.2 r.2(1) RDC/RHC).

In the past, the Defendant can set aside irregular judgment as of right (ex debito justitiae) even
if his defence is without merit (Tong Sang v United Merchants Finance Ltd [1984] HKC 592).
This is changed in Honour Finance Co Ltd v Chui Mei Mei [1989] 2 HKLR 146 (albeit obitor)
and Faircharm Investments Ltd v Citibank International plc (1998) Times, 20 February which
the Court held that the Defendant should demonstrate a good ground of defence before setting
aside. This is because if the Defendant is bound to lose the case, it is meaningless to set the
default judgment aside (Bank Austria Aktiengesellschaft v Suwardi Sukamto [2002] 1 HKC
232).

However, in the case of Po Kwong Marble Factory Ltd v Wah Yee Decoration Co Ltd [1996]
4 HKC 157, it was held that merits of defence need not be shown. The Court instead had a
residual discretion having regard to the conduct of the parties. The Court in Chu Kam Lun v
Yap Lisa Susanto [1993] 3 HKC 378 and later Deng Minghui v Chau Shuk Ling [2007] HKCA
63 shared the same view. The Court has also residual discretion to look into other matters in
deciding whether to impose terms on setting aside the judgment, although the discretion is
rarely exercised (Dave Lau (2017), para 820). In Melco Crown Gaming (Macau) Ltd v Wong
Yam Tak (HCA 238/2013), the latest position is that the Court prefers the traditional test in Po
Kwong Marble Factory and can set aside without considering the merit of the case (even if the
Defence is hopeless).

The application should be made by summon supported by an affidavit (with the irregularity
explained).

Page 35 of 93
[For criticism of setting aside irregular judgment - refer to para 12-56 to 12-64 of Michael
Wilkinson (2017)]

Cost for Setting Aside

For setting aside irregular judgment, the Plaintiff will normally be required to pay for the
Defendant’s cost. This is because the Plaintiff should not have obtained the judgment in the
first place.

In contrast, for setting aside regular judgment, the Defendant will normally be required to pay
for the Plaintiff's cost or pay a sum of money to the Court. This is because the Defendant is
seeking the Court’s indulgence for setting aside (Michael Wilkinson (2017) para 12-68).
However, the Court reserves its discretion on cost and is not bound by the above practices.

Undelivered Post Returned

For judgment entered O.13 RDC/RHC, the copy of the writ sent to the Defendant is returned
to the Plaintiff through the registered post undelivered to the addressee after judgment was
entered, the Plaintiff shall, before taking any step or further step in the action or the enforcement
of the judgment, either (a) make a request for the judgment to be set aside on the ground that
the writ has not been duly served, or (b) apply to the Court for directions (O.13 r.7(3)
RDC/RHC).

Page 36 of 93
 Admissions of Money Claims (O.13A RDC/RHC)

The purpose of O.13A is to provide a simple and flexible way encouraging early settlement of
claims with the help of a binding admission made by the Defendant (Hong Kong White Book
2021, para 13A/0/1).

Under O.13A RDC/RHC, if the claim involves money only, the Defendant can admit the whole
or part of the claim or make a proposal for the way in which payment is to be made. It can be
used to admit who or part of the liquidated or unliquidated amount of money (O.13A r.4-7
RDC/RHC). If the only remedy claimed is for money, the writ must contain a statement that
the defendant may make an admission under Order 13A (O.6 r.2 RDC/RHC) and Form 16 and
Form 16C should be attached to the writ for liquidated amount and unliquidated amount
accordingly.

Deadline for such an admission is within the period fixed for service of the defence (O.13 A
r.3(1)(a) RDC/RHC). Late admission is possible as long as the Plaintiff has not obtained any
default judgment under O.13 RDC/RHC or O.19 RDC/RHC (O.13A r.3 RDC/RHC). The
Plaintiff must respond by filing a reply and/ or request for judgment in prescribed form. If he
fails to reply within 14 days after a copy of admission is served, the claim is stayed until he
files the request.

If the Defendant admits the whole of a liquidated amount, the Plaintiff should file Form 16A
to obtain judgment with fixed costs and interest.

If the Defendant admits part a of liquidated amount, the Plaintiff should file Form 16B to either
obtain judgment on admitted sum with fixed costs and interest, or not accept the admission and
continue with action.

If the Defendant admits liability for the unliquidated amount without offering any sum, the
Plaintiff should file Form 16D to obtain an interlocutory judgment for an amount to be decided
by the Court and costs.

If the Defendant admits liability for unliquidated amount and offers a sum, the Plaintiff should
file Form 16E to either obtain judgment on sum offered with fixed costs and interest, or obtain
an interlocutory judgment for an amount to be decided by the Court and costs

Request for Time to Pay

A Defendant who makes an admission under rule 4, 5 or 7 (i.e. whole of claim for liquidated
amount, part of claim for liquidated amount of money, or unliquidated amount of money where
defendant offers a sum in satisfaction of the claim) may make a proposal about the date of
payment or a proposal to pay by instalments (O.13 r.9A RDC/RHC). The Defendant is required
to disclose his financial situation in the prescribed form and make a declaration to confirm its
truthfulness. If the Defendant fails to pay any of the installments on time, the stay of execution
will cease and he may be required to pay the whole of the unpaid balance (O.13A r.9(8)
Page 37 of 93
RDC/RHC). The Court has also the discretion on whether or not to extend the time to pay an
admitted judgment sum (Panjabi v Cader [2011] 4 HKLRD 355). Inability to pay is not a good
justification (Michael Wilkinson (2017), para 12-76).

If the Plaintiff accepts the Defendant’s request for time to pay, he may obtain judgment against
the Defendant but the execution of the judgment is stayed pending payment.

If the Defendant fails to pay an instalment or part of an instalment in accordance with the
judgment, the stay of execution immediately ceases, and the Plaintiff may enforce the payment
of the whole amount adjudged to be paid or the whole of any unpaid balance. An extension of
time to pay will only be granted in exceptional cases, and the extension period allowed would
be relatively short (Panjabi v Cader [2011] 4 HKLRD 355).

If the Plaintiff does not accept the Defendant’s proposal for payment, the Court shall enter
judgment for the amount admitted (less any payments made) to be paid by the date or at the
times and rate of payment determined by the Court.

[For criticism of Order 13A - refer to para 12-71 footnote 122 of Michael Wilkinson (2017)]

[For detail of Order 13A – refer to Dave Lau (2017) starting para 10-1]

Page 38 of 93
 Interlocutory Applications

The main purposes of interlocutory applications include (1) disposing of actions without trial;
(2) protecting rights and interests pending trial and (3) proper identification of issues and
preparation for trial.

A breach of interlocutory injunction might lead to a committal order (Re Europet

Heimtierbedarf GmbH HCMP 1208/1994).

Inter Partes Application

The application is usually made inter parties with summons and supporting affidavit and heard
by a Master (O.32 r.11 and 11A RDC/RHC). A call-over hearing may also be required for the
Court to give direction regarding the filing of affidavits and timing of substantive hearing.
These will be followed by a substantive hearing. The Court may alternatively dispose the issue
on papers (i.e. skeleton arguments submitted by both sides) (O.32 r.11A(a) RDC/RHC).

Ex Parte Application
However, ex parte applications may also be made for handling cases of extreme urgency (Slik
Hong Kong Co Ltd v Gerald Merlyn Rhoslyn Evans [2005] HKEC 1326) or cases that need
secrecy.

Urgency
Concerning the ground of urgency, the Court constructs this ground narrowly. The case must
be so urgent that it is not even feasible to make a phone call or a fax to the other party (Seapower
Resources International Ltd v Lau Pak Shing [1993] HKLY 828).

Secrecy
For secrecy, it has to be established that giving notice would frustrate the purpose of the
application (Re Estate of Au Yeung Kee [2014] 4 HKC 451).

Full and Frank Disclosure

For ex parte applications, the party marking the application bears onerous and continuing duty
of full and frank disclosure in the supporting affidavit, including without limitation to the
material that is unfavourable to him. It does not matter whether the undisclosed material will
in fact affect the Court’s ruling (New Asia Energy Ltd v. Concord Oil (Hong Kong) Ltd [2000]
2 HKC 681). The order may be discharged even if the non-disclosure is not made deliberately
(Standard Chartered Securities Ltd. v Lai Arthur & Others [1993] 1 HKC 375).

The affidavit in support of the application together with a draft order should be lodged with the
Registry. An injunction granted after ex parte application will be valid for several days. The
injunction application will be heard again very soon in an inter parte application.

Page 39 of 93
Examples of ex parte application include applications to serve a writ out of jurisdiction,
application of garnishee orders nisi, charging orders nisi, interlocutory injunctions and Anton
Piller orders.

Interlocutory Injunction
An injunction is a temporary equitable and discretionary relief measure requiring a party to
either refrain from specific act (prohibitory injunction) or alternatively requires him to carry
out specific act (mandatory injunction) within a prescribed period of time (Allan Leung, 2017).
DC’s jurisdiction on injunction is limited to not exceeding $3,000,000 for movable property
(such as money), and a rateables value of $320,000 for immovable property (s52(1) DCO).

The objective of injunction is to preserve legal rights and interest and prevent commission or
continuation of a legal wrong (Halsbury’s Law of Hong Kong Vol 90-90B para 90.0834).

After CJR, the CFI is empowered to grant free-standing interlocutory injunction (O.29 r.8A
RHC). This may apply to proceedings outside Hong Kong in which the judgment would be
enforceable in Hong Kong. In contrast, DC can only grant interlocutory injunction as an
ancillary application to a proceeding.

It is most likely to grant an interim injunction on an ex parte application. The injunction is

interim until an inter partes hearing. The inter parte hearing that take place on the Friday
morning following the ex parte application (PD 5.3).

Conditions for Interlocutory Injunction

Serious Issue to be Tried

The applicant must first show that there is a serious issue to be tried. After that, he should
demonstrate there is a balance of convenience in flavour of granting injunction. There is no
need to show a prima facie case of success, but only a real prospect of success. The claim
cannot be a frivolous or vexatious one (American Cyanamid Co v. Ethicon Ltd [1975] AC 396).

Balance of Convenience
Concerning balance of convenience, if damages would be an adequate remedy and the
Defendant would be in a financial position to pay them, an injunction will be granted (Woo
Kwok Ping v The Incorporated Management Committee of Tsuen Wan Trade Association
Primary School [2013] 5 HKLRD 264). In contrast, if the damage would be irreparable and
cannot be adequately compensated, an injunction will not normally be granted. The Court will
consider whether granting or refusing the order would pose the least risk of injustice (Films
Rover International Ltd v Cannon Film sales Ltd [1986] 3 All ER 772).

If the balance is evenly weighted, the Court will also consider other relevant factors, such as
the need of preserving the status quo, the strength of the parties’ case and public interest
(Halsbury’s Law of Hong Kong Vol 90-90B para 90.0836).

Page 40 of 93
The Court will apply a lower threshold of proof for restraining the breach of a clear and express
negative covenant (Doherty v Allman (1878) 3 App Cas 709). However, the Court has the
discretion to refuse such an application if it is unjust to grant the injunction (Incorporated
Owners of South Seas Centre v Great Treasure Development Ltd [1994] 1 HKC 197).

All in all, the Court seeks to impose the least risk of injustice (Music Advance Ltd & Another
v The Incorporated Owners of Argyle Centre HCA2574/2002; Films Rover International Ltd
v Cannon Film Sales Ltd [1986] 3 All ER 772). In granting interlocutory injunction, the Court
will consider also the practical effect of such injunction with a view to avoiding injustice at its
best endeavour (Fast-link Express Ltd v Falcon Express Ltd HCA 2040/2005). If the grant or
refusal of such application will practically dispose of the whole action, the Court will have
more regard to the plaintiff’s prospects of success (Cheung Tak Wing v Communications
Authority [2015] 5 HKC 70). In such cases, the Plaintiff should show that it is very likely to
succeed at trial in order to have the injunction granted (Fast-link Express Ltd v Falcon Express
Ltd HCA 2040/2005).

Undertaking in Damages
The Court will normally require the applicant to give an undertaking in damages and provide
evidence in its affidavit that he is able to pay damages (Dave Lau, 2017; American Cyanamid
Co v Ethicon Ltd [1975] AC 396).

Usual Equitable Principles

The Court will apply the usual equitable principles (i.e. the applicant must come with clean
hands) and there must be no undue delay (Dave Lau (2017), para 9.120). The Court is unlikely
to allow application that is made 6 weeks late if there is no sound explanation or 3 months late
if there is explanation (Dave Lau (2017), para 9.123).

Mandatory Injunction
It is harder to get a mandatory injunction than a prohibitory injunction (Music Advance Ltd v
The Incorporated Owners of Argyle Centre HCA2574/2002). For mandatory injunction, a
higher standard of proof is needed (i.e. high degree of assurance). Yet, in some cases, the
prohibitory injunction could be in substance a mandatory injunction. For instance, in Fung
King Wang v Tang Chung Keung [2007] HKEC 516, the prohibitory injunction required the
Defendant to restrain water from leakage. This however caused the Defendant to positively
take action to stop the leakage.

However, the Court may grant the mandatory injunction if refusing so will carry a greater risk
of injustice, although the Court does not find a high degree of assurance (Film Rover
International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772). If the Plaintiff seeking a
mandatory injunction cannot show a serious question to be tried, it has to show that the balance
of convenience tilts to in its favour that justice requires such an injunction to be granted.

Mandatory injunctions generally carry a higher risk of injustice as they usually go further than
the preservation of the status quo by requiring a party to take some new positive step or undo
Page 41 of 93
Piller order may also be granted to preserve the books and records in support of the Maerva
injunction (Refco Inc v Troika Investment Ltd [1998] 2 HKLR 623).

If the Mareva injunction has been breached or likely to be breached, the Court may appoint a
receiver over the assets (Derby v Weldon (Nos 3 and 4) [1990] Ch 65).

Anton Piller Order

If there is a risk that the Defendant could destroy the evidence under his possession, an Anton
Piller order may be applied by the Plaintiff. Both DC and CFI have inherent jurisdiction to
grant such an order (Michael Wilkinson (2017), para 11-82).

Anton Piller order is a mandatory injunction that allows the applicant to enter and search the
respondent’s premises to inspect or preserve specified property (Dave Lau (2017), para 9.134).
The main objective of such an order is to preserve evidence and prevent them from being
concealed or destroyed (Columbia Picture Industries Inc v Robinson [1987] 1 Ch 39). It is a
contempt to Court if the applicant is not given access to the respondent’s premises.

Although O.29 r.2 RDC/RHC provides similar relief, yet, such application has to be made inter
partes. There is a risk that the Defendant may destroy the evidence upon receipt of the notice.

Conditions for Anton Piller Order

As set out in Anton Piller KG v Manufacturing Processes Limited [1976] 1 Ch 55, there are
three conditions that have to be fulfilled.

Extremely Strong Prima Facie Case

Firstly, as Anton Piller order is a “nuclear weapon” against the Defendant that causes
significant disruption to him, the applicant must demonstrate an extremely strong prima facie
case. This threshold is higher than the requirement of “good arguable case” for applying
Mareva injunction.

Serious Interest
Secondly, the potential or actual damage to the Plaintiff’s interest must be very serious. In
other words, if the materials owed by the Defendant is destroyed, Plaintiff’s chance of success
at trial would be seriously prejudiced. Also, the Defendant’s alleged wrongful conduct must
cause serious damage and loss to the Plaintiff (Allan Leung, 2017).

Real Possibility of Destroying

Lastly, there must be clear evidence showing a real possibility that the incriminating materials
possessed by the Defendant will be disposed of or destroyed before any inter parte application
can be made.

Page 46 of 93
The provision can be invoked even if the opposing party served a list of documents and / or
further and better list and / or a verifying affidavit (Dave Lau (2017), para 9.79).

The party applying specific discovery should establish a prima facie case that the specified
documents exist and yet did not include in the list of documents (Kabushiki Kaisha Yakult
Honsa v Yakudo Group Holdings Ltd [2003] HKCU 784). He should also establish that the
documents are in possession, custody or power of the other party and it is relevant to a matter
in the proceeding. Lastly, the specific discovery should be required for a fair disposal of the
case or saving the costs (Lee Nui Foon v Ocean Park Corp (No 1) [1995] 2 HKC 390).

The Court may still allow the application even if the document can be obtained from other
sources in order to save the applicant from unnecessary time and expense (Tsoi Chan Kwai
Kiu v Artist House Co [2000] HKCFI 103).

If the party fails to comply with the obligation of discovery, he may be committed to prison
(O.24 r.16(2) RDC/RHC).

[For documents obtained by mistake - Michael Wilkinson (2017) starting para 9-111]

Order for General Discovery

Under O.24 r.3 RDC/RHC, if parties did not undergo automatic discovery, the Court may force
the parties to do so. The application may be made on the case management summons (O.25
r.10(1) RDC, O.25 r.7(10) RHC). Such an application is unlikely to be allowed before close
of pleadings as the matter in dispute is yet to be known (Keevil and Keevil Ltd v Boag [1940]
3 All ER 346).

However, under O.24 r8.(1) RDC/RHC, if the Court is satisfied that discovery is not necessary,
it may adjourn the application and shall refuse to make such an order if discovery is not
necessary either for disposing fairly of the cause or matter or for saving costs.

Discovery Against Third Party

The Court cannot order discovery or production of documents against persons who are not
parties to the action, who have no connection with the action except that he may be called as a
witness at the trial (i.e. mere witness rule).

Norwich Pharmacal Order (Post-writ & Pre-writ)

However, this general rule is subject to many exceptions. One of the key exceptions is provided
in Norwich Pharmacal Co v Customs & Excise Commissioners [1974] AC 133. It is stated
that if a third party has no fault of his own and yet is involved in the wrongdoing directly or
indirectly, he may incur no personal liability, but he comes under a duty to assist the person
who has been wronged by giving him full information and disclosing the identity of the
wrongdoers. Such wrongdoing need not be a criminal offence in nature (P v T Ltd [1997] 4
All ER 200, [1997] 1 WLR 1309).

Page 57 of 93
In Norwich Pharmacal, it was held that the third party should provide the name and address of
the wrongdoers. However, it could be extended to other information, such as details of bank
accounts (A Co v B Co [2002] 2 HKC 497) and information showing that the Defendant has
committed the wrong (Aoot Kalmneft v Denton Wilde Sapte [2002] 1 Lloyd’s Rep 417). Also,
the scope of Norwich Pharmacal discovery is extended and covers not only tortious acts, but
also breach of contract (Ashworth Hospital Authority v MGN Ltd [2002] 4 All ER 193).

The test of relevance for discovery against a party of the proceeding applies.

[Refer to relevance of documents above]

Norwich Pharmacal discovery will only be allowed as a last resort when information sought
would not otherwise become available; and to withhold relief would amount to a denial of
justice (Mitsui & Co Ltd v Nexen Petroleum UK Ltd [2005] 3 All ER 511). The Court will
balance the competing interests of the applicant and the party from whom discovery is sought
(AG v Wellcome Foundation Ltd [1992] 1 HKC 158).

For personal data recovered by Norwich Pharmacal discovery (e.g. name and address) are not
protected by Personal Data (Privacy) Ordinance as the protection is exempted for remedying
seriously improper conduct or dishonesty or malpractice under s58(1) of the ordinance
(Cinepoly Records Co Ltd v Hong Kong Broadband Network Ltd [2006] 1 HKC 433).

A post-writ Norwich Pharmacal order may also be granted in aid of a post-judgment Mareva
injunction (Mercantile Group (Europe) AG v Aiyela [1994] QB 366).

The applicant should generally pay for the disclosing party’s cost.

s42 HCO, s47B DCO (Post-writ)

Another exception to the rule is stated in s42 HCO and s47B DCO. A party can apply to CFI
for an order requiring a third party who is likely to have in his possession, custody or power
any documents which are relevant to an issue arising out of that claim. The document should
be produced to applicant’s legal advisers; to the applicant’s legal advisers and any medical or
other professional adviser of the applicant; or if the applicant has no legal adviser, to any
medical or other professional adviser of the applicant (s41(b) HCO and s47B(2)(b) DCO). The
test of relevance should apply (Campagine Financiere Du Pacitique v Peruvian Guano Co
(1882 11 QBD 55).

The test of relevance for discovery against a party of the proceeding applies.

[Refer to Relevance of documents above]

Concerning protection under Personal Data (Privacy) Ordinance, similar to Norwich Pharmacal
discovery, s58(1) can be invoked and thus the data recovered is not protected by the ordinance.

Page 58 of 93
Such discovery should be necessary either for disposing fairly of the case or matter or for saving
costs O.24 r.8(2) RDC/RHC (Cheung Sin Tak Anthony v Shun Tak China Travel Ship
Management Ltd HCMP 2101/2009). The application may be granted with conditions (e.g.
the applicant should give security for the cost of the third party) (Michael Wilkinson (2017),
para 9-27).

An application must be supported by an affidavit (O.24 r.7A(3) RDC/RDC) with summons

(O.24 r.7A(4) RDC/RHC).

Pre-Action Discovery

Norwich Pharmacal Order (Post-writ & Pre-writ)

Pre-action discovery can be carried out by obtaining Norwich Pharmacal order against non-
party with a view to discovering the identity of the wrongdoers (i.e. who could be the Defendant
in the proceeding).

[Refer to Norwich Pharmacal above]

s41(1) HCO and s47(1) DCO (Pre-writ)

Concerning pre-action discovery against a person likely to be a party to subsequent proceedings,
s41(1) HCO and s47A(1) DCO should be invoked together with O.24 r.7A(1) RDC/RHC.

On application by a person who is likely a party to subsequent proceedings, the Court has power
to order a third party to disclose whether documents directly relevant to an issue are in his
possession, custody or power and to produce such documents. The document should be
produced to the applicant's legal advisers; or if the applicant has no legal adviser, to any medical
or other professional adviser of the applicant (s42(b) HCO and s47A(2)(b) DCO).

Such discovery should be necessary either for disposing fairly of the case or matter or for saving
costs O.24 r.8(2) RDC/RHC (Cheung Sin Tak Anthony v Shun Tak China Travel Ship
Management Ltd HCMP 2101/2009).

The discovery is limited to only directly relevant documents that are likely to be relied on in
evidence in the proceedings or a document that could support or adversely affect any party’s
case. This is narrower than Peruvian Guano test adopted for post-action discovery against the
party of the action (Dave Lau (2017) para 9.80).

In assessing such an application, the Court will take into account several factors, such as (1)
what documents were already in hands of the applicant; (2) the opportunity for the applicant to
make his case without the pre-action discovery; (3) whether there is real prospect that the order
could save cost, and (4) whether the pre-action discovery will further the objectives of the Rules
of the District Court (Moresfield v Banners [2003] EWHC 1602 (Ch)).

Page 59 of 93
 Settlement

Negotiations Through Lawyers

Lawyers acting for parties have ostensible authority to settle the case on behalf of their client.
This ostensible authority would usually be able to bind the client (Waugh v HB Clifford &
Sons Ltd [1982] Ch 374).

However, the settlement should not introduce extraneous subject matter. In other words, the
matters involved should not be collateral to the proceeding (Waugh v HB Clifford & Sons Ltd
[1982] Ch 374). It is also dangerous for the solicitor to just rely on the ostensible authority to
bind his client to the settlement terms. Solicitors negotiate settlement on behalf of the client
should therefore ensure that they obtain clear instructions from the client in relation to the
solicitor’s authority to settle. An express consent from the client is generally encouraged
(Michael Wilkinson, 2017).

Negotiations by the Lay Clients

Parties of the proceeding are generally allowed to settle matters by themselves on any terms
and conditions they agreed. If the case is settled, they should notify the Court (O.34 r.8
RDC/RHC). Such a settlement can be achieved by way of settlement agreement before or after
commencement of action (Von Hatzfeldt-Wildenburg v Alexander [1912] 1 Ch 284).

However, for settlements negotiated by lay clients, there is a risk that they may not be above
to conclude a validly binding legal agreement by themselves. For instance, attempted
settlement during a meeting in a lift lobby may fail to result in binding settlement agreement
(Kwan Siu Man Joshua v. Yaacov Ozer (1997-98) 1 HKCFAR 343).

“Without Prejudice” Negotiations

“Without Prejudice” is usually used by parties to label communications genuinely aimed at
facilitating settlement. It prevents any party from unilaterally referring to such
communications in evidence in trial, or from using them to establish an admission.

For public policy reasons, without prejudice communication need not be disclosed in discovery
in order to encourage settlement of the case. The parties can speak freely about all factual and
legal issues in order to seek for settlement (Rush & Tompkins [1989] AC 1280). Whether a
communication is without prejudice communication should be judged on substance over form.
If the communication is not made for negotiating settlement, it would not fall within this
exception (Standard Chartered Bank (Hong Kong) Ltd v Ma Lit Kin Cary [2007] HKCU 123),
even though it is in fact marked “without prejudice” (Williams v Hull [2009] EWHC 2844).

“Without Prejudice” communications are however admissible when deciding the following
issues whether a settlement had been reached at all and whether a concluded settlement should
be set aside. “Without Prejudice” also cannot be used as a cloak for perjury or blackmail. It is
also admissible for deciding whether there was delay in the plaintiff’s prosecution of the action
due to ongoing settlement negotiations. In cases where correspondence is marked “Without
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prejudice save as to costs”, such an communication is admissible for the Court to decide the
costs of an action or an application

Subject to Contract
Marking negotiations “subject to contract” would mean that no settlement would be concluded
until the terms have been reduced into writing and signed by all parties to the settlement. It
aims to avoid unnecessary disputes arising from conflicting reflections between the parties as
to whether any binding settlement had been concluded and the terms thereof.

Dismissal of Actions
The Court has inherent jurisdiction to dismiss a claim for want of prosecution (i.e. lack of
progress over an unduly long period of time) (Birkett v James [1978] AC 297). There should
be excessive delay and prejudice caused to the other party as a result of the delay.

Also, as in Liquidators of Wing Fai Construction Co Ltd v Yip Kwong Robert (2011) 11
HKCFAR 935, if the maintenance of an action amounts to an abuse of process of the Court,
the action will be dismissed. This occurs when the Plaintiff lacks the authority to sue or he
failed to progress with the case despite the warning by the Defendant; or the Plaintiff failed to
comply with peremptory orders (i.e. orders with penalty included in the order itself for non-
compliance – unless orders)

Withdrawal and Discontinuance

No leave required for an action begun by a Writ:-

1. The Defendant may discontinue the action, or withdraw any particular claim made by
him as against any or all of the Defendants at any time not later than 14 days after service
of the Defence or, if there are two or more Defendants, of the Defence last served, by
serving a notice to that effect on the The Defendant concerned (O.21 r.2(1) RDC/RDC)
2. The Defendant may withdraw his Defence or any part of it at any time, and/or discontinue
a counterclaim, or withdraw any particular claim made by him as against any or all of the
parties against whom it is made, at any time not later than 14 days after service on him
of a Defence to counterclaim or, if the counterclaim is made against two or more parties,
of the Defence to counterclaim last served, by serving a notice to that effect on P or other
party concerned (O.21 r.2(2) RDC/RHC)
3. If all parties consent, an action may be withdrawn before trial by filing a written consent
signed by all parties (O.21 r.2(4) RDC/RHC)

Otherwise, leave is required from the Court to discontinue or withdraw a claim (O.21 r.3
RDC/RHC). The Court will consider whether discontinuance should be granted, and the issue
of costs.

In general, costs follow the event of discontinuance (i.e. he who discontinues pays) (Ta Tung
China & Arts Ltd v Fontana Restaurant Ltd [1999] 1 HKLRD 404). But the Court retains the

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discretion to depart from the general rule in exceptional circumstances (Re Peaktop
Technologies (USA) Hong Kong Ltd [2007] 4 HKLRD 207).

Subject to any terms imposed by the Court in granting leave under rule 3, the fact that a party
has discontinued an action or counterclaim or withdrawn a particular claim made by him therein
shall not be a defence to a subsequent action for the same, or substantially the same, cause of
action (O.21 r.4 RDC/RHC).

Where a party has discontinued an action or counterclaim or withdrawn any particular claim
made by him therein and he is liable to pay any other party’s costs of the action or counterclaim
or the costs occasioned to any other party by the claim withdrawn, then, if, before payment of
those costs, he subsequently brings an action for the same, or substantially the same, cause of
action, the Court may order the proceedings in that action to be stayed until those costs are paid
(O.21 r.5 RDC/RHC).

Alternative Dispute Resolution

Alternative Dispute Resolution (ADR) is always encouraged with a view to restoring the
dispute without the need of going to the Court (Practical Direction 5.2 Para 3). Also, some
ADRs are not conducted in adversarial manner (e.g. mediation, negotiation), the relationship
between parties can thus be maintained.

Further, if there is an arbitration clause in the contract between parties, the parties have to carry
out arbitration before commencing litigation in the Court. The litigation may be stayed if the
litigation is commenced without arbitration despite the arbitration clause (s20 Arbitration
Ordinance).

Under O.62 r.5 (1)(aa) RDC/RHC, when exercising the discretion regarding cost, the Court
may take into account different circumstances as appropriate, such as the underlying objectives
set out in O.1A r.1 RDC/RHC. One of the underlying objectives is to facilitate the settlement
of disputes (O.1A r.1(f) RDC/RHC). The Court also has the duty and power to manage cases
under O.1A r.4 RDC/RHC. Active case management includes encouraging the parties to use
an alternative dispute resolution procedure if the Court considers that appropriate, and
facilitating the use of such a procedure; and to help the parties settle the whole of part of the
case.

The common ADRs include mediation, arbitration, adjudication, expert determination, mini-
trial and negotiation. Mediation and negotiation are particularly encouraged for its flexibility
and low cost.

Mediation
One of the ADR methods encouraged by the Court is mediation. Mediation is well-known for
its flexibility and a neutral third party (i.e. mediator) would assist the party to come up with a
settlement agreement by themselves.

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him (Allan Leung, 2017). There should be positive reasons justifying his refusal (OMV Petrom
SA v Glencore International AG [2017] 1 WLR 3465).

In considering whether it would be unjust to do so, the Court would take into account the terms
of the sanctioned offer or sanctioned payment; the stage in the proceedings at which any
sanctioned offer or sanctioned payment was made; the information available to the parties at
the time when the sanctioned offer or sanctioned payment was made; and the conduct of the
parties with regard to the giving or refusing to give information for the purposes of enabling
the sanctioned offer or sanctioned payment to be made or evaluated (O.22 r.23(5) and (6)
RDC/RHC; O.23 r.(4) and (5) RDC/RHC).

There is a paradox that, if the successful party (“party A”) rejected a sanctioned offer or
sanctioned payment but fails to do better in trial, he may be asked to pay indemnity costs. In
contrast, if party A loses the case, and there was no sanctioned offer or sanctioned payment
made by his opposing party, party A is unlikely required to pay indemnity costs unless there is
exceptional circumstances. Thus, the cost order in this regard should carefully considered on
a case by case basis (Hong Kong White Book 2021, para 22/24/1; Pacific China Holdings Ltd
v Grand Pacific Holdings Ltd (CACV 136/ 2011 23 July 2012)).

Court’s Residual Discretion

The Court retains the discretion to depart from the automatic cost sanctions, if it considers it
unjust to do so (O.22 r.23(6), O.22 r.24(5) RDC/RHC).

In considering whether the automatic costs sanctions are unjust, the Court should take into
account:-
1. The terms of the sanctioned offer/payment
2. The stage in the proceedings at which any sanctioned offer/payment was made
3. The information available to the parties at the time when the sanctioned offer/payment was
made; and
4. The conduct of the parties with regard to the giving or refusing to give information for the
purposes of enabling the offer/payment to be made or evaluated (O.22 r.23(6) and r.24(5)
RDC/RHC).

The same test applies to consider whether costs penalty should be imposed on the party
applying to accept a sanctioned offer/payment out of time (O.22 r.15(3) RDC/RHC; Or Siu
Lung v Fu Hong Home for the Elderly Co Ltd [2018] 1 HKLRD 872).

For a case at the CFI, if the offeror would like to apply to the Court to have costs taxed at the
DC scale under the proviso to O.22 r.20 RDC/RHC, should the offeree accept the offer, on the
basis that the offer was substantially below the jurisdiction of the CFI (Etratech Asia-Pacific
Ltd v Leader Printed Circuit Boards Ltd [2013] 4 HKC 282).

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Calderbank Offer
Calderbank offer is an attempt to negotiate settlement through without prejudice
communication save as to costs. The Court may take into account the offer when exercising
its discretion in awarding costs (O.62 r.5(1)(d) RDC/RHC).

Where the party could have used a sanctioned offer/payment, but instead put forward a
Calderbank offer, the offer is to be ignored for the purpose of deciding costs (O.62 r.5(1)(d)
RDC/RHC).

Order 22 mechanism is not applicable to consider the issue of costs for an appeal hearing
(Antwerp Diamond Bank NV v Brink’s Inc (No.2) [2015] 4 HKLRD 628).

Calderbank offers may also be relevant for pre-action negotiation, and if parties would like to
argue that a refusal to accept a pre-action offer is unreasonable.

If a settlement proposal contains terms which cannot be accommodated by O.22, then it is still
useful to make an offer by way of a Calderbank letter (Wealthy Plus Ltd v Lai Man Ho [2001]
4 HKC 691).

E.g. for a property dispute, D may offer to P to value the property at $X, and split the proceeds
of sale 50/50.

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 Cost

The Court has complete discretion to determine the liability for cost and amount and extent of
the costs to be paid (s52A(1) HCO). The direction should be exercised according to O.62
RDC/RHC. A party cannot recover his costs from the other party unless there is an order from
the Court (O.62 r.3(1) RDC/RHC).

Under O.62 r.3(2) and (2A) RDC/RHC, when the Court makes a cost order the Court shall
order the cost to follow the event unless another cost order is made. In other words, the party
who loses should pay the successful party’s cost on pursuing or defending the action. In reality,
it is unlikely that the successful party could be fully recovered for the cost he paid to his lawyer,
even though the cost is taxed by the Court on the indemnity basis (Michael Wilkinson, 2017).

Party and Party Basis

This is the usual basis of taxation and yet it is the least generous one (Dave Lau (2017), para
12.21). The losing party shall pay the costs of another party (e.g. legal costs and disbursement
costs). These costs should be necessary or proper for the attainment of justice or for enforcing
or defending the rights of the party (O.62 r.28 RDC/RHC). The costs are necessary or proper
to enable the party to conduct the litigation and no more. Cost incurred for conducting the
litigation more conveniently is not included (Smith v Buller (1875) LR 19 Eq 473). Cost
incurred because of negligence, mistake or overcaution is not recoverable either (Xinyuan
Trading Co Limited v NPH Petrochemical Limited HCA 18159/1998). The Court will adopt
a two-stage approach ensuring (1) the total sum and (2) cost of each item are not
disproportionate (Poon Shu Fan v Wong Tin Yan [2012] 5 HKLRD 512).

In practice, the cost allowed under this basis will be lower than the cost actually incurred by
the winning party (Berry v British Transport Commission [1962] 1 QB 306). As noted by
Allan Leung (2017), the losing party should pay generally 50-65% of the solicitor’s cost and
90-100% of the disbursement cost (including counsel’s fee) incurred by the winning party.
That constitutes 60%-70% of the actual cost spent.

Common Fund Basis

Common fund basis is more generous than party and party basis and includes a reasonable
allowance in respect of all costs reasonably incurred. As stated in O.62 r.28(4) RDC/RHC, the
ordinary rules applicable on a taxation as between solicitor and client where the costs are to be
paid out of a common fund in which the client and others are interested shall be applied. This
taxation approach is used when there is a common fund and cost will be paid out of it (Law
Society of Hong Kong v Solicitor [2007] HKEC 415), for instance, cost to be recovered from
the Legal Aid Fund (s20A(1) Legal Aid Ordinance). The Court has the discretion to order
common fund basis under other circumstances, for instance, it can be used against the party
who prolong the proceeding because of unreasonable manner (Linda Chih-ling Koo v Lam Tai-
hing [1992] 2 HKLR 314), or against a party who insist on an unwarranted charge (Reed v
Gray [1952] Ch 337), or an appeal is hopeless (Credit Agricole v Crossland Industries Corpn

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any minor children. The Court must attempt to strike a balance between the normal
expectations of the creditor and the hardship to the wife and children if a charging order is
made.

In case of a matrimonial home registered in the joint names of the debtor and spouse, the Court
may need to deduce the couples’ intention from the available evidence (Ko Sha Lam v Kei
Fong HCA 3971/2000).

If, prior to the charging order application, the husband/wife of the judgment debtor has already
applied for divorce and an order for ancillary relief (i.e. to distribute the matrimonial assets),
the Court may refuse to make a charging order, if it is likely that any charging order will
prejudice the outcome of the ancillary relief proceedings (Harman v Glencross [1986] 1 All ER
545).

If the property is under mortgage, the mortgage should have a higher priority than the charging
order.

Once a charging order is made, an equitable charge is imposed on the property to secure
payment of the judgment debt. Further other for sale is needed in order to sell the charged
property.

For a charging order against landed properties, it should be registered at the Land Registry to
obtain priority over other interests. Under s3(1) Land Registration Ordinance, priority is
granted to instrument that register first.

A charging order will have no effect if it was only obtained and registered after the judgment
debtor had assigned the property away (Ng Kam Ha v Vincent Sina Traders (HK) Ltd [1987]
2 HKC 517) or it was only registered after the sale and purchase agreement is signed (Tse Fook
Choy, Joey Callan v Kwong On Bank Ltd [1999] 3 HKC 126). But in this case, if the purchaser
has knowledge of the charging order, he/she may be asked to pay over part or all of the balance
of the purchase price to the judgment creditor to satisfy the charging order first.

A charging order does not amount to an automatic right to sell the property so charged. If the
judgment creditor would like to sell the property, there must be a separate application for an
order for sale (O.50 r.9A RDC/RHC).

The procedures follow a mortgagee’s application under Order 88

The application procedure is the same as garnishee order.

Appointment of a Receiver
A receiver will be appointed to maintain and manage the asset, and apply the income produced
in satisfaction of the judgment debt (s21L HCO; s52B DCO; O.30 RDC/RHC). The receiver
will be entitled to proper remuneration as may be authorised by the Court (O.30 r.3 RDC/RHC)
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and he must submit accounts to such parties ay such intervals as the Court may direct (O.30 r.5
RDC/RHC).

The applicant shall apply for appointment by way of a Summons with affidavit (O.30 r.1
RDC/RHC).

Writ of Sequestration, Committal Proceedings

Writ of sequestration punishes contempt by proceeding against the property of the contemnor
(Pratt v Inman (1889) 43 Ch D 175).

Sequestration is directed at the contemnor’s assets. Committal is directed at the contemnor’s

person (O.45 r.5, O.46 r.5, O.52 RDC/RHC).

Judgments which may be enforced by writ of sequestration/ committal (O.45 r.5(1) RDC/RHC)
which directs a person to do an act within a time specified and the person refuses or neglects
to do it within that time; or which require a person to abstain from doing any act and the person
disobeys such judgment

The contemnor knew the facts which gave rise to the contempt and the disobedience is more
than casual or incidental (Kao, Lee & Yip (a firm) and Donald Koo Hoi-yan & Others (2009)
12 HKCFAR 830).

Enforcement on Partnership
It may enforce a judgment against a partnership on an individual partner if the partner
acknowledged service of the writ as a partner, admitted he is a partner or is adjudged to be a
partner (O.81 r.5(2) RDC/RHC).

Execution to enforce a judgment or order given or made against a firm may not issue against a
member of the firm who was out of the jurisdiction when the writ of summons was issued
unless he

(a) acknowledged service of the writ in the action as a partner, or

(b) was served within the jurisdiction with the writ as a partner, or
(c) was, with the leave of the Court given under Order 11, served out of the jurisdiction with
the writ as a partner;

and, except as provided by paragraph (1) and by the foregoing provisions of this paragraph, a
judgment or order given or made against a firm shall not render liable, release or otherwise
affect a member of the firm who was out of the jurisdiction when the writ was issued (O.81
r.5(3) RDC/RHC).

Prohibition Order (Pre-action or Pre-judgment)

It is an order of the Court preventing the Defendant from leaving Hong Kong in order to
facilitate the enforcement or securing or pursuance of a judgment or civil claim. The conditions
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under s21B(3) HCO have to be fulfilled, namely (1) Plaintiff has good cause of action, (2)
Defendant has liability or business in Hong Kong or ordinary residence in Hong kong, (3) the
Defendant is about to leave Hong Kong and (4) because of (3), the judgment is likely to be
obstructed delayed.

It has to establish that the Defendant intended to leave Hong Kong to defeat the Court of justice.
A short oversea trip was insufficient (Edward Chan v Technical Waxes (NZ) Lrd [1980] HKLR
526). It is however not required to prove that the Defendant intended to leave Hong kong
permanently (HBZ Finance Ltd v Glory Products Co Ltd HCA 5892/2000).

It is made by ex parte application with full and frank disclosure. An order must be served on
the Director of Immigration, Commissioner of Police and the Defendant. It is valid for 1
months and can be renewed for up to 3 months. Fresh order has to be applied after 3 months.

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