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WEDNESDAY, JANUARY 11, 1984
*THAT PRINCIPLE IS OF COURSE THAT NO PERSON SHOULD BE IMPRISONED WITHOUT AN ORDER OF THE COURT, AND JUDGMENT DEBTORS ARE NO EXCEPTION.
+ IN ADDITION, THE PRESENT BILL ALSO SEEKS TO REFORM THE LAW IN THE RELATED AND IMPORTANT AREA OF ARREST OF A DEFENDANT IN CIVIL PROCEEDINGS BEFORE ANY JUDGMENT IS OBTAINED AGAINST HIM,+ HE SAID.
+THIS AREA OF LAW REFORM HAS PERHAPS RECEIVED LESS PUBLICITY THAN THAT OF THE JUDGMENT DEBTOR, BUT IS AT LEAST AS DESERVING A CANDIDATE, BECAUSE THE POTENTIAL FOR ABUSE IS GREATER IN A CASE WHERE JUDGMENT HAS NOT EVEN BEEN OBTAINED, HE ADDED.
MR SWAINE, WHO WOULD BE MOVING THE BULK OF THE AMENDMENTS, THEN PRESENTED THE OUTLINES OF THE BILL AS REFORMULATED.
ON THE IMPRISONMENT OF DEBTORS, HE EXPLAINED THAT UNDER THE PROPOSED NEW SECTION 21A OF THE SUPREME COURT ORDINANCE, THE COURT'S JURISDICTION TO MAKE AN ORDER FOR ARREST OR IMPRISONMENT OF A DEFENDANT IN A CIVIL CASE IS LIMITED TO ENFORCING, SECURING OR PURSUING A JUDGMENT FOR THE PAYMENT OF A SPECIFIED SUM OF MONEY.
SUCH AN ORDER FOR IMPRISONMENT SHALL NOT EXCEED THREE MONTHS, BUT UNDER THE PROPOSED ORDER 49B RULE 1B(3)(B) THE COURT MAY ORDER THE IMPRISONMENT OF THE JUDGMENT DEBTOR ON EACH OCCASION OF A FAILURE TO COMPLY WITH AN ORDER TO SATISFY THE JUDGMENT BY INSTALMENTS OR IN SUCH OTHER MANNER AS THE COURT THINKS FIT, OR MORE THAN ONCE IN RESPECT OF A CONTINUING FAILURE TO COMPLY WITH SUCH AN ORDER, HE ADDED.
ON THE NEW CONCEPT OF A PROHIBITION ORDER INTRODUCED UNDER THE PROPOSED NEW SECTION 21B, MR SWAINE SAID THAT THIS IS AN ORDER PROHIBITING A PERSON FROM LEAVING HONG KONG IN CERTAIN SPECIFIED CIRCUMSTANCES.
+THESE ARE BROADLY IN TWO CATEGORIES, NAMELY WHERE THERE IS ALREADY A JUDGMENT AGAINST THAT PERSON AND WHERE THERE IS NO JUDGMENT AS YET BUT ONLY A CLAIM,+ HE SAID.
+ IT IS THE LATTER CATEGORY WHICH I HAD SAID EARLIER WAS POTENTIALLY THE MOST OPEN TO ABUSE, AND THE CONCERN OF THE UNOFFICIALS WAS (AS INDEED WITH ALL OTHER PROVISIONS OF THE BILL) TO STRIKE A BALANCE BETWEEN THE DESIRE TO PROTECT THE CLAIMANT'S LEGITIMATE NEEDS AND TO PREVENT INJUSTICE BEING DONE TO THE DEFENDANT, HE ADDED.
WHERE A JUDGMENT HAS ALREADY BEEN OBTAINED, THE PROHIBITION ORDER IS TO BE AVAILABLE NOT ONLY WHERE THE JUDGMENT IS FOR THE PAYMENT OF A SPECIFIED SUM OF MONEY. BUT ALSO WHERE THE JUDGMENT IS FOR THE PAYMENT OF AN AMOUNT TO BE ASSESSED OR FOR THE DELIVERY OF ANY PROPERTY OR PERFORMANCE OF ANY OTHER ACT.
+THIS CASTS THE NET VERY WIDE INDEED AND IS INTENDED TO PREVENT THE ABSCONDING OF JUST ABOUT EVERY CLASS OF JUDGMENT DEBTOR, MR SWAINE OBSERVED.
THE FINAL