A prohibition order is an order of a court made at the request of a creditor to prohibit a debtor from leaving Hong Kong pending payment or provision of security for the debt. Prohibition orders are delivered to the Immigration Department who will then place the name and travel document details (either Hong Kong Identity Card or Passport number) of the debtor on a stop list.
In this article, we outline the circumstances in which a court may grant a prohibition order to enforce a judgment or order (or likely judgment or order) and describe the procedure for a prohibition order. Other articles in our library on enforcement of judgments include articles on Mareva injunctions, Chabra Injunctions and Norwich Pharmacal orders.
If you would like to find out more about prohibition orders or the enforcement of judgments generally, please contact one of our dispute resolution lawyers.
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A prohibition order is a powerful tool in the enforcement of judgments. It enables a judgment creditor to prevent a judgment debtor from leaving Hong Kong for the purpose of facilitating the enforcement of a judgment against the judgment debtor. In appropriate circumstances, a creditor who has yet to obtain a judgment may still obtain a prohibition order to ensure that a likely future judgment against a debtor does not go unsatisfied because of the debtor leaving Hong Kong.
Statutory Authority
Hong Kong courts have the authority to issue prohibition orders under the High Court Ordinance, s. 21B, which provides that:
The Court shall have jurisdiction to make an order prohibiting a person from leaving Hong Kong (a prohibition order) to facilitate the enforcement, securing or pursuant of:
(a) a judgment against that person for the payment of a specified sum;
(b) a judgment or order against that person
(i) for the payment of an amount to be assessed; or
(ii) requiring him to deliver any property or perform any other act; or
(c) a civil claim (other than a judgment)
(i) for the payment of money or damages; or
(ii) for the delivery of any property or the performance of any other act.
In referencing both “judgments or orders” as well as “civil claims (other than a judgment)”, the legislation thus provides for prohibition orders both before and after a judgment or an order. The common requirement for all prohibition orders is that they must be to facilitate the enforcement or securing of a judgment or order.
Pre-Judgment Prohibition Order
A pre-judgment prohibition order is available in any “civil claim” either for the payment of money or damages or for the delivery of any property or the performance of any other act. Thus, whilst a prohibition order may be available where a plaintiff sues a defendant for damages for breach of contract and has yet to be granted judgment for the breach, it may also be available, for example, where an applicant seeks an injunction order but the court has not yet granted the order.
Hong Kong Nexus
In a pre-judgment prohibition order, the person against whom the prohibition order is sought must have sufficient nexus to Hong Kong, meaning that this person must meet one of the following conditions::
the person incurred alleged liability in Hong Kong while present in Hong Kong;
the person carries on business in Hong Kong; or
the person is ordinarily resident in Hong Kong.
Departure from Hong Kong
A person seeking a pre-judgment prohibition order against another person must show not only that there is probable cause to believe that the latter is about to leave Hong Kong but also that the judgment or order sought in the civil claim is likely to be obstructed or delayed as a result of the other person leaving Hong Kong.
Good Cause of Action
As may be evident, the core issue in any application for a pre-judgment prohibition order is whether the plaintiff has a “good cause of action”. In this regard, the courts have stated that prohibition orders are intended “to prevent a plaintiff from being deprived of the fruits of his judgment by those who are, on clear evidence, demonstrably going to use their escape from the jurisdiction as a means of escaping liability for their debts”.
Applications to court for a prohibition order are made in person before the court and ex parte, meaning without notice to the person against whom the order is sought. Obviously, it would be self-defeating to give this person notice of the application. Because the person against whom the prohibition order is sought has no opportunity to defend himself on the application, the court expects the applicant to make full and frank disclosure of all relevant facts and arguments including those which may tend to suggest a prohibition order is inappropriate.
Any person seeking an ex parte application in circumstances where the person has not yet obtained a judgment against the person against whom the prohibition order is sought should be aware that such applications carry a high degree of risk. In these cases, the person against whom a prohibition order has been made may apply to court to discharge the order on the basis of a substantial defence. Where a court finds that the application for a prohibition order was made on insufficient grounds, the court may order the person who obtained the prohibition order to compensate the person who was wrongly subjected to the prohibition order.
Post-Judgment Prohibition Order
A person seeking a post-judgment prohibition order faces a lower threshold for obtaining such an order as compared to a person seeking a pre-judgment prohibition order.
Judgment for Liquidated Sum
Where the person has a judgment in hand for a specified sum of money, he may obtain a prohibition order without the need to show that the person against whom the judgment has been made has a nexus to Hong Kong, that this person is about to leave Hong Kong or that the departure of this person from Hong Kong is likely to obstruct or delay the enforcement of the judgment. However, as with all prohibition orders, such a person must still show that the prohibition order would facilitate the enforcement or securing of the judgment.
Judgment or Order Otherwise than for Liquidated Sum
Where a person has a judgment or order against another person either for the payment of an amount which has yet to be assessed by the court or requiring the other person to delivery any property or perform any act, he may seek a prohibition order without the need to show a good cause of action. This is because this person already has the judgment or order in hand and thus, the court has already determined that his action has merit.
Nevertheless, such a person must still show that:
there is probable cause to believe that the person against whom the prohibition order is sought is about to leave Hong Kong;
by reason of this person leaving Hong Kong, the judgment or order is likely to be obstructed or delayed; and
the prohibition order would facilitate the enforcement or securing of the judgment or order.
Procedure
A prohibition order is valid for one month but may be extended or renewed for a maximum total period of 3 months. Thereafter, the creditor must apply for and justify a fresh prohibition order. Each order should be served on the Director of Immigration, the Commissioner of Police and, if he can be found, the person subject to the prohibition order. The Immigration Department will require not only the name of the person subject to the prohibition order but also the person’s travel document details (e.g. Hong Kong identity card number or passport number) to add the person to a stop list.
If the person subject to the prohibition order has been served, he may be arrested if he attempts to leave Hong Kong. Whether or not such a person has been served, the Immigration Department may stop the person from leaving Hong Kong. As a result, any person upon who a prohibition order is served or who becomes aware he is the subject of a prohibition order should seek legal advice to consider a possible discharge of the order.
