1. How can I know if the judgment debtor has the financial resources to satisfy the court judgment and to pay the debt?
If you are the judgment creditor, it may be that you know little about the judgment debtor's assets. Without further information, you will not be able to make the best choice regarding the available methods of enforcement.
By virtue of the provisions of Order 48 or Order 49B of the Rules of the High Court (see also Order 48 or Order 49B of the Rules of the District Court as appropriate), a judgment debtor can be called to the court to answer questions about his assets.
One significant difference between Order 48 and Order 49B is that while the former specifically allows the examination of a corporation's officers, there is no corresponding provision in the latter.
However, the Order 49B procedure has two advantages: (i) the judgment debtor can be arrested before the examination to secure his attendance in court; and (ii) the court has wider powers to order disclosure of assets by the judgment debtor.
Examination of the judgment debtor under Order 48
The court may, on your ex parte application (without giving notice to the debtor) with a supporting affidavit or affirmation, order the judgment debtor to attend before the Registrar or such officer as the court may appoint and be orally examined on the following questions:
- whether any and, if so, what debts are owing to the judgment debtor by other persons; and
- whether the judgment debtor has any and, if so, what other property or financial resources that could be used for satisfying the judgment or order in your favour.
(If the judgment debtor is a limited company, the order can be made against a senior officer of the company.)
The court may also order the judgment debtor or officer to produce any documents in the judgment debtor's possession relevant to the questions mentioned above at the time and place appointed for the examination.
The order for examination must be delivered by hand to the judgment debtor and to any senior officer of a body corporate ordered to attend for examination. The judgment debtor's failure to attend the examination may lead to an order for imprisonment.
Examination of the judgment debtor under Order 49B
Where a judgment for the payment of a specified sum of money is unsatisfied (either wholly or partly), the court, on your ex parte application, may order the examination of the judgment debtor on his assets, liabilities, income and expenditure and of the disposal of any assets or income.
For the purpose of securing the attendance of the judgment debtor at the examination, the court may order the judgment debtor to appear before the court at a time appointed by it, with such documents or records as it may specify. Such an order must be delivered to the judgment debtor by hand.
If, from all the circumstances of the case (including the judgment debtor's conduct), it appears to the court that there is reasonable cause to believe that an order to appear before the court for examination may be ineffective to secure the judgment debtor’s attendance, the court may order that the judgment debtor be arrested and be brought before the court on the day following the day of arrest.
It should be noted that, on an application for the above examination by the judgment creditor, the court has the power to make an order prohibiting the judgment debtor from leaving Hong Kong.
Where a judgment debtor fails to appear as ordered, the court may order that he be arrested and brought before the court for examination on the day following the day of arrest.
The power of the court after examining the judgment debtor
Following the examination conducted under either Order 48 or Order 49B,
- if the court is satisfied that the judgment debtor:
- is able to satisfy the judgment, wholly or partly, but did not do so; or
- has disposed of assets with a view to avoiding satisfaction of the judgment or the liability which is the subject of the judgment, wholly or partly; or
- has wilfully failed to make a full disclosure as required or to answer any question,
it may, in its discretion, order the imprisonment of the judgment debtor for a period not exceeding 3 months.
(NB If the judgment debtor fails to comply with such an order, you may apply to the court, on not less than 2 clear days notice to the judgment debtor, for an order for the imprisonment of the judgment debtor. Unless the judgment debtor shows good reason to object, the court may order the imprisonment of the judgment debtor for a period not exceeding 3 months.)