FCMP 31 of 2005
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
NUMBER 31 OF 2005
Coram : Her Honour Judge Chu in Chambers
Date of Hearing : 17 November 2005
Date of Handing Down of Judgment : 25 November 2005
R U L I N G
1. The preliminary issue in this Judgment Summons is whether in proceedings for enforcement of a registered foreign maintenance order, leave is required under s. 12 of the Matrimonial Proceedings and Property Ordinance Cap. 192 (“MPPO”) for the enforcement of arrears due more than 12 months before proceedings for enforcement are begun.
2. The Applicant / Judgment Creditor is the former wife of the Respondent / Judgment Debtor and she is now residing in Ontario, Canada with the child of the family, now 19. The Respondent resides in Hong Kong.
3. On 26th February 1991, the Applicant obtained a maintenance order from the Ontario Court (General Division) of Canada (“Maintenance Order”) which provides that the Respondent should pay to her for the child of the marriage the amount of Can$1,000 per month, with effect from 8th January 1991 as interim child support.
4. The payments became more sporadic since about late 1999. Subsequently the Maintenance Order was registered in Hong Kong on 30th August 2000 under s. 7 of the Maintenance Orders (Reciprocal Enforcement) Ordinance Cap 188 (“MREO”).
5. On 14th March 2005, the Applicant, through the Department of Justice of Hong Kong, applied for leave to issue a Judgment Summons.
6. Leave was granted and on 22nd March 2005, a Judgment Summons was duly issued against the Respondent for arrears totalling CAN$42,100 or about HK$221,719.5 as at April 2004.
7. Mr. Enzo Chow, of the Department of Justice, who appeared on behalf of the Applicant seeks to argue as a preliminary issue as to whether leave is required under s. 12 of MPPO to enforce arrears which became due more than 12 months before the Judgment Summons was issued. He submits that leave should not be required for, inter alia, the following reasons :
(i) the meaning of “maintenance order” under s. 2 of MREO is very wide, and is not limited to orders granted in matrimonial proceedings, and refers to order for periodical payment of sums of money towards maintenance of any person, and includes an affiliation order.
(ii) S. 9 (1) of MREO is only a “deeming provision” and shall not be taken as imperative for the District Court to follow all the procedural requirements under the relevant legislation, unless a particular requirement is necessary, appropriate and equitable.
(iii) S. 12 of MPPO only applies to certain orders made under that ordinance.
8. Mr Chow further submits that this court should not apply the so called “12 month rule”, namely the practice of not enforcing arrears due more than 12 months before enforcement proceedings are begun, in registered foreign maintenance orders.
9. The Respondent was acting in person. From what he said, I understood his position to be that the “12 month rule” should be invoked.
10. I would, first of all deal with the application of s. 12 of MPPO.
MEANING OF “MAINTENANCE ORDER”
11. Under s. 2 of MREO, “maintenance order” means any of the following : -
“(a) an order (including an affiliation order or order consequent upon an affiliation order) which provides for the periodical payment of sums of money towards the maintenance of any person, being a person whom the person liable to make payments under the order is, according to the law applied in the place where the order was made, liable to maintain; and
(b) an affiliation order or order consequent upon an affiliation order being an order which provides for the payment by a person adjudged, found or declared to be a child’s father of expenses incidental to the child’s birth or, where the child has died, of his funeral expenses; and
(c) in the case of a maintenance order which has been varied, that order as varied, but does not include a maintenance order being, or made pursuant to, a judgment which by virtue of the Foreign Judgments (Restriction on Recognition and Enforcement) Ordinance (Cap. 46) cannot be recognized or enforce in Hong Kong”.
12. On the reading of the above, clearly the meaning of “maintenance order” is very wide, and it includes an affiliation order and an order for periodical payment of sums of money towards the maintenance of any person, whom the payer is liable to maintain according to the law in the foreign place. Therefore, such an order is not just restricted to a maintenance order for a lawful spouse or a child of a marriage.
S. 9(1) OF MREO
13. S. 9(1) of MREO provides that : -
“A registered order may be enforced in Hong Kong as if it had been made by the District Court and as if that court had had jurisdiction to make it; and proceedings for or with respect to the enforcement of any such order may be taken accordingly”.
14. Mr Chow submits that the purpose of this section is to facilitate the District Court to “draw analogy regarding the procedure for enforcement of registered orders”.
15. It appears to me the effect of this section is to presume that the District Court had jurisdiction to make the order and that even if the District Court did not have the jurisdiction to make the registered order, it would still have the jurisdiction to deal with the enforcement proceedings. I agree with Mr. Chow that this section should not be interpreted to mean that, in dealing with the enforcement proceedings, it is imperative that s. 12 of MPPO shall apply.
S.12 OF MPPO
16. s. 12(1) of...