TNAG-2162-FCO40-3093-Legal-matters-between-Hong-Kong-and-China-1990 — Page 74

CODE 18-77

Reference

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Ms Major

HKD

HK (370/2

RECEIVED

- 5 JUN 1990

SK OFFICI

FL

TRY

GISTRY

Action Taken

From: Jill Barrett

Assistant Legal Adviser

Date: 3 May 1990

See 3

ENFORCEMENT OF HONG KONG CIVIL JUDGEMENTS IN THE PRC

1. You asked for comments on a bundle of correspondence resulting from a request from the solicitors firm Deacons to the Peking Embassy for assistance in obtaining the enforcement of a judgment of the Supreme Court of Hong Kong against a judgment debtor in Zhongshan City. The judgment debtor appears to be a department of Zhongshan City Government.

2. The correspondence shows that Peking advised Deacons that the form required by the Chinese would be a request from the Hong Kong Supreme Court to the relevant PRC Court presented formally through diplomatic channels (Mr Jones' letter of 19 May 1989). HKG have however advised that such a request would be inappropriate, for the reasons set out in Miss Wong's letter to Ms Bailes of 14 November 1989. Their concern is that a request from a Hong Kong Court would imply that reciprocal assistance would be available in Hong Kong in the event of a similar request from a PRC Court. Their view is that Hong Kong is not in a position to offer reciprocal assistance.

3.

It is not clear to me why HKG's legal advisers should have taken the view that Hong Kong courts cannot offer reciprocity. The UK Courts would have no such difficulty. It is true that a Chinese judgment is not automatically enforceable here by way of execution against the judgment debtor. However, a Chinese judgment may be the subject of an action in an English Court (equivalent to an action for debt) and, if judgment is given in favour of the creditor, that judgment may then be executed in the usual way. This is governed entirely by rules of common law, which are, so far as I am aware, the same in Hong Kong. An action on a foreign judgment involves a lengthier procedure than direct execution, but the end result is generally much the same.

4.

I therefore see no reason why the necessary assurance of reciprocity in the Hong Kong courts should not be given. I have found in an old file papers relating to a similar case in 1985 in which FCO assistance was given to obtain the enforcement of an English judgment in Kuwait. The British Ambassador made the following statement in response to a question posed by the Kuwaiti Court, as to the enforceability of Kuwaiti judgments in the UK.

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