Introduction

A prohibition order can be made to restrain a person from leaving Hong Kong so as to facilitate the enforcement of judgments, orders or civil claims, though it is subject to heavy scrutiny by the Court and might be discharged even after it was granted. In the recent family law case of CWYJ v LTYE [2020] HKCA 913, the Court of Appeal has discharged a prohibition order that originally restrained the respondent ex-husband (the “Ex-Husband”) from leaving Hong Kong. The reasons behind the discharge included that the restrictions affected his ability to discharge certain financial obligations to his ex-wife (the “Wife”), and that the prohibition order disproportionately interfered with the Ex-Husband’s freedom of movement under the Basic Law and his common law right to pursue an occupation.

The facts leading up to the prohibition orders

Background

The parties were married in 2007. The Wife petitioned for divorce in 2016 and they agreed to a Consent Order in 2017 requiring the Ex-Husband to make both periodical payments and lump sum payments. Apart from payments of $10,000 each by the Ex-Husband in August and September 2016, he had failed to make any payment under the Consent Order.

The Ex-Husband is from Hong Kong and has deep ties to Hong Kong, both professionally and socially. He relocated to Singapore and has been working there since 2019. He remarried in May 2020 in Singapore.

The application for the prohibition order

The Wife issued two judgment summonses to enforce the Consent Order and recover the outstanding periodical payments and her costs. At the hearing of the two judgment summonses, the Ex-Husband was ordered to personally attend the hearing for the same on 28 July 2020 (the “July Hearing”).

In June 2020, the Ex-Husband filed an affidavit stating that he would not attend the July Hearing because his employer required him to return to work in Singapore. He would leave Hong Kong at any time between 7 and 9 July 2020. The Wife then took out an ex-parte application for a prohibition order under section 52E of the District Court Ordinance (Cap. 336), which was granted on 6 July 2020 by Deputy District Judge Lam (“DD Judge Lam”).

Key issues to be considered by the Court

DD Judge Lam considered the following issues when deciding whether or not to grant the prohibition order:

1.        whether there is a real likelihood that the judgment debtor (namely, the Ex-Husband) will leave Hong Kong;

2.        whether there is a real risk that he will not return for a substantial period of time; and

3.        whether as a result of the Ex-Husband’s absence, enforcement of the judgment would be obstructed or delayed.

She then held that there was no indication of any concrete plan to return to Hong Kong in the foreseeable future, especially in light of the Ex-Husband’s employment commitments together with the travel restriction policy of Singapore. There would therefore be a real likelihood that he would leave Hong Kong and not return for a substantial period of time. To formulate her view on the above, DD Judge Lam considered, inter alia, the following factors:

1.        the Ex-Husband’s statutory declaration for the purpose of terminating his MPF account when relocating to Singapore;

2.        the Ex-Husband’s affidavits filed in the present proceedings that he has relocated to Singapore permanently for work and will leave Hong Kong as soon as the prohibition order is discharged; and

3.        the Ex-Husband’s long history of defaulting payment and his conduct of not paying one single cent since September 2016 until after the prohibition order was granted.

The Ex-Husband’s appeal against the prohibition order

The Ex-Husband sought to appeal against the prohibition order. He stated that he had never missed a court hearing and the July Hearing was the first that he would miss. His employer urgently needed him to attend a business trip in order to fulfill his role as project leader. His grounds of appeal were, inter alia, as follows:

1.        DD Judge Lam erred in principle and in law with regard to her approach in granting the prohibition order where the Ex-Husband’s livelihood depends upon his employment in Singapore, whose courts will enforce orders of the Hong Kong Family Court.

2.        DD Judge Lam detained the Ex-Husband within Hong Kong. Such detention was not reasonably or properly conducive to enforcing the judgment and the Ex-Husband’s departure from Hong Kong would not significantly impede the enforcement of the same.

3.        DD Judge Lam erred in holding that the Ex-Husband had no concrete plan to return to Hong Kong.

In addition, the Ex-Husband also referred to his constitutional right of movement and travel (under Basic Law Article 31) and his deeply entrenched common law right to pursue an occupation.

The Court of Appeal’s decision

The appeal was allowed. The Court of Appeal first stated that a judgment debtor may leave Hong Kong temporarily but this alone will not obstruct or delay the enforcement of the judgment. Instead, it is only where there is a likelihood of substantial absence that risk of obstruction or delay of enforcement may occur. 

Second, the Court of Appeal ruled that DD Judge Lam failed to consider the Ex-Husband’s freedom of movement and right to work, especially against the background that the purpose of the departure from Hong Kong is for him to continue with his current employment with a Singaporean employer.

Further, DD Judge Lam also failed to give proper weight to the impact of the prohibition order on the Ex-Husband not being able to return to Singapore to work. DD Judge Lam ignored a relevant fact that the Ex-Husband needed to return to work in order to provide for his livelihood and to discharge his obligations towards the Wife.

Finally, the evidence did not the entitle DD Judge Lam to conclude that the Ex-Husband would leave Hong Kong in order to avoid his obligations towards the Wife. He had returned repeatedly to Hong Kong where his children and parents are living despite having moved to Singapore in 2019, and he had attended all the court proceedings below. Notwithstanding his departure, the Court of Appeal did not see that the Ex-Husband would sever all his ties with Hong Kong and be unlikely to return to Hong Kong, causing the enforcement of the judgment to be obstructed and delayed.

Accordingly, the appeal was allowed. The prohibition order was set aside. 

Takeaway

While prohibition orders are useful in facilitating enforcement of judgments, one should bear in mind that they are not permanent and could be discharged when the party subject to the prohibition order needs to leave Hong Kong for legitimate financial reasons. Alternative litigation strategies to facilitate the enforcement of judgments should therefore be concurrently considered. On this end, it would be prudent for a party to carefully assess the particular circumstances and obtain legal advice whenever necessary.