Civil Procedure in Hong Kong: An Overview
Hong Kong civil procedure involves many aspects and is relatively complex. This article provides an introduction to the main aspects of Hong Kong’s civil procedure. It is not intended to be complete or exhaustive but is intended to give the reader an overview of the main aspects of Hong Kong’s civil procedure.
I. Courts of Jurisdiction for Civil Litigation Cases in Hong Kong
Under Hong Kong’s legal system, the principal courts of first instance in civil proceedings are the District Court and the Court of First Instance of the High Court. Other specialized courts, such as the Small Claims Tribunal, also have jurisdiction over some cases.
For general civil litigation cases such as contracts or torts, there is no limit on the amount of money that can be sued at first instance in the Court of First Instance of the High Court, whereas the District Court can only hear cases where the amount of property in dispute is less than HK$3 million, and cases where the amount of money in dispute is less than HK$75,000 can only be heard in the Small Claims Tribunal.
As for cases relating to land or property, the scope of landed property that the District Court is empowered to deal with is landed property with an annual rent or deficiency not exceeding HK$320,000, and cases involving equitable claims in respect of landed property with a value not exceeding HK$7 million.
The first instance of matrimonial family cases is exercised by the Family Court of the General District Court, while labour dispute cases are under the jurisdiction of the Labour Tribunal.
II. Solicitors’ Representation in Civil Litigation in Hong Kong
There are two types of solicitors in Hong Kong, solicitors and barristers (also known as litigators). Solicitors practise in the name of a firm of solicitors and act for cases, while barristers practise and act for cases on an individual basis. A party to a civil action who is looking for a solicitor to act for them in a civil action can only seek representation from a solicitor. Barristers are not permitted to accept instructions directly from clients to represent them but can only accept instructions from solicitors to represent them. If a solicitor needs the assistance of a barrister (e.g. to appear in court to argue a case, to do complex legal research, etc.) in the course of being instructed by a party to civil litigation to handle a civil litigation case, a barrister may be engaged to take part in the litigation with the consent of the client.
In Hong Kong civil proceedings, solicitors generally charge fees on an hourly basis, and the rates of fees vary according to the seniority and experience of the solicitors. Under Hong Kong’s civil litigation system, the court will normally award the losing party to bear the winning party’s legal costs. If a solicitor’s representation is improper, the court is also empowered to award the solicitor to bear the winning party’s legal costs in appropriate cases.
III. General procedure of civil proceedings in Hong Kong
1. Writ of Summons
A Writ of Summons is a document filed by the Plaintiff with the Court against the Defendant, stating the names and addresses of the Plaintiff and the Defendant, and the claim for which the Plaintiff is seeking compensation. The Writ of Summons is drafted and signed by the Plaintiff (usually by an attorney) and filed in the court of competent jurisdiction, which will stamp the Writ of Summons and assign it a case number.
2. Service of the Writ of Summons
The Writ of Summons must be served on the Defendant, otherwise the Court cannot proceed with the case. Under Hong Kong civil procedure, service of a Writ of Summons is the plaintiff’s job and responsibility and it is not the duty of the court to effect service.
If the defendant’s address is in Hong Kong, the plaintiff may appoint another person (e.g. a clerk in a solicitors’ firm) to deliver the document to the defendant in person, or effect service by registered post, by stuffing it into the defendant’s mailbox or by leaving it at the defendant’s address.
If the defendant’s address is outside Hong Kong, the plaintiff will need to apply to the court for leave to effect extra-territorial service, and only after obtaining the court’s leave can the plaintiff serve the writ of summons on the defendant residing outside Hong Kong. Service must be effected by a method not prohibited by local law, otherwise it will be void. If the defendant’s address is in the Mainland of China, service must be effected by way of judicial assistance from the High Court of Hong Kong to the local court in the Mainland. After service has been effected in accordance with the law, the plaintiff should submit evidence to the court to prove that service has been effected in order to proceed with the case.
3. Application for Default Judgment
If the plaintiff fails to file an acknowledgment of service with the court within 14 days after service of the writ of summons, indicating the defendant’s intention to defend, the plaintiff shall have the right to apply for a judgement by default to the court after the expiry of the 14 days. Failure to file a recognisance will be deemed in law to be a waiver of the defence and an admission of the plaintiff’s claim, and the court may enter a default judgment on the plaintiff’s claim without a hearing. If the defendant has filed an acknowledgement of service of process indicating that he/she wants to defend the case but does not file a reply later, the plaintiff can also apply for a default judgment.
4. Pleadings (Statement of Claim, Defense, Reply)
If, after the Plaintiff has served the Writ of Summons, the Defendant files an Affidavit of Service with the Court indicating his or her intent to defend, the proceedings proceed to the pleading stage. The procedure at the pleading stage is.
- The plaintiff should file a statement of claim within 14 days of the defendant’s filing of the recognizance in court;
- the defendant should file a statement of defense within 28 days of receiving the plaintiff’s statement of claim
- the Plaintiff should file a Reply to the Defendant’s Reply within 28 days of receiving the Defendant’s Reply.
In addition to the Statement of Claim, Defense and Reply mentioned above, if either party considers that the content of the pleadings submitted by the other party lacks specific details, it may request the other party to submit additional details of the content.
The above time limits for the submission of pleadings can be extended by mutual consent or by the court’s decision. In practice, parties often apply to the Tribunal for an extension of time limits when they are unable to file on time.
5. Case Management Summons
Within 28 days of the completion of the pleading stage, the parties should submit to the Tribunal a timetable questionnaire, which serves to inform the Tribunal of the progress of the case. Thereafter a case management summons should be issued by either the plaintiff or the defendant to the Tribunal for directions on procedural matters thereafter up to the pre-trial stage. The procedural directions usually given by the court in relation to a case management summons are: an exchange of written evidence between the parties within a certain period of time (e.g. 28 days), followed by an exchange of witness statements within a certain period of time (e.g. 28 days), barrister’s advice which the parties may seek within a subsequent period of time (e.g. 56 days), a certain period of time in which the parties may make any other procedural applications they wish to make, and the next case management conference. The parties may make any other procedural applications they wish to make within a certain period of time, and when the next case management conference is to be held, etc.
6. Exchange of documentary evidence
Pursuant to procedural directions given by the Tribunal, the parties will exchange their documentary evidence with each other at specified times. Copies of evidence are usually exchanged. If either party wishes to see the originals of the evidence, he or she may request the other party to produce the originals for inspection. Under Hong Kong law, parties to litigation are obliged to disclose all evidence relevant to the case, whether that evidence is favourable or unfavourable to their side of the case. Therefore, if a party has evidence that the other party has withheld any evidence, he or she may request the other party to produce it or apply to the Court for an order to have it produced.
7. Exchange of witness statements
In accordance with procedural directions made by the Court, each party will exchange written witness statements of his or her side with the other party at a specified time. Under the Hong Kong legal system, the story of a party’s case must be told by way of witness testimony and cross-examination by the other party before the facts to be proved can be established, and written evidence needs to be presented by way of witness testimony. Witnesses may be the plaintiff-defendant himself, or other knowledgeable persons and participants in the event. Witnesses testify by first exchanging written witness statements prior to trial, and then at trial the witnesses are subjected to additional questioning by their own counsel (cross-examination-in-chief) and by the opposing counsel (cross-examination) regarding the content of their written statements.
8. Case Management Conference and/or Pre-trial Review
The Case Management Conference and Pre-Trial Review are procedural hearings to prepare for the formal hearing of the case, where the Court reviews the readiness of the parties to prepare for the formal hearing of the case, and gives directions and arrangements for procedural matters prior to the hearing.
9. Trial
The trial consists of three main parts: the opening statements of the parties, the cross-examination of witnesses and the closing statements. Of these, the cross-examination of witnesses usually takes up the most time. The cross-examination of each witness is divided into two parts: the main cross-examination of the witness by the lawyer of one side and the cross-examination of the witness by the lawyer of the other side. Main cross-examination may not ask leading questions, while cross-examination may ask leading questions.
IV. Appeals from Judgements in Civil Proceedings in Hong Kong
For appeals against the result of a judgement at first instance, if the original judgement was made by the District Court, an application for leave to appeal is required, and leave to appeal can only be obtained; leave to appeal can be applied for within 28 days of the original judgement being made to the judge who made the judgement, and if leave is not granted, leave to appeal can be applied for within 14 days at the Court of Appeal of the High Court. If the judgement at first instance was given by the Court of First Instance of the High Court, no leave is required and the appeal may be brought directly to the Court of Appeal of the High Court.
Whether the original judgement is made by the District Court or the CFI of the High Court, the appeal is to the Court of Appeal of the High Court. As the Court of Appeal hearing does not usually involve new evidence or the calling or cross-examining of witnesses, the appeal process is usually much quicker than the original trial process, and an application for setting down a hearing can be made soon after the Notice of Appeal has been filed and served.
An appeal hearing in Hong Kong usually consists of three parts: the appellant’s submissions, then the respondent’s submissions, and finally the appellant’s reply submissions. After the judge has heard the submissions, he or she may deliver the judgement on the spot or adjourn the hearing.
V. Enforcement of Judgements in Civil Proceedings in Hong Kong
Enforcement of civil judgments in Hong Kong is carried out by the applicant for enforcement applying to the court for a specific enforcement order, which is then examined by the court and made by the court. The applicant for enforcement serves the court’s enforcement order on all parties to further and carry out the enforcement. In Hong Kong, there is no enforcement division in the courts, and the courts are not responsible for investigating and collecting clues and information on the property of the executor, and it is up to the applicant for enforcement to take forward the enforcement activities on his/her own. Normally an enforcement applicant in civil proceedings may apply to the court for the following orders:
- Summoning the executor to appear before the judge to make oral enquiry on the starting financial position under Order 48 and 49B of the Rules of the High Court and to produce relevant documents. The Court has the discretion to impose imprisonment of up to 3 months on a debtor who evades the debt or refuses to disclose.
- Apply to the Court for an injunction order to prohibit the debtor from leaving Hong Kong.
- Seizure of the debtor’s property or repossession by a court bailiff;
- Apply for a third party debt order against the debtor’s claims against third parties (e.g. deposits in banks, etc.) to be paid directly from the claims of third parties (e.g. banks);
- Applying to the court for a charging order and an auction order to create a charge on the run-over person’s property (e.g. a property) and to conduct an auction.
VI. Costs of Civil Litigation in Hong Kong
1. Court Fees
The courts in Hong Kong are essentially free of charge and there is no court fee payable according to the amount in dispute in the action. A case registration fee of HK$1,045 will be charged at the time of registration of the case. Other than that, the court does not charge any fee.
2. Lawyers’ Fees in Hong Kong
Hong Kong lawyers generally handle civil litigation cases on an hourly basis, the hourly rate is mostly in the range of 2,500-5,000, there are a few higher or lower than this, the billing work includes reading documents, writing documents, meetings, communication, court hearings, legal research and other work related to the case. Usually the client pays a fee to the solicitor’s firm to make a deposit for the legal fees, then the solicitor’s firm sends out regular bills to the client based on the fees incurred for the actual work, which is deducted from the deposit, and if the deposit is not enough, the client needs to make a supplementary deposit, and so on until the case is over. If the case requires the assistance of a barrister, the client will also need to pay the barrister’s fees.
3. The losing party will have to pay the winning party’s legal costs.
The civil litigation system in Hong Kong is a loser pays system, i.e. not only does the losing party have to bear its own solicitor’s costs, but the court will also award the losing party to bear the winning party’s solicitor’s costs. The amount of the winning party’s legal costs to be borne by the losing party will be assessed by the court on the basis of the work done if the parties cannot agree on the amount of the winning party’s legal costs.
4. Litigation Costs Deposit
If the plaintiff is not ordinarily resident in Hong Kong, or if the defendant has other grounds for reasonably believing that the plaintiff will not be, or will not be able to be, able to pay the defendant’s legal costs in the event that the plaintiff loses the case, the defendant may make an application to the court requiring the plaintiff to pay into the court in advance a costs deposit to secure the payment of the defendant’s legal costs in the event that the plaintiff loses the case. If the court makes such an order and the plaintiff fails to pay, the defendant can normally apply to the court to strike out the plaintiff’s action on this ground.
(Bob Yan, principal solicitor of Yan Lawyers, solicitors. Email: [email protected], Tel: +852 31881995, +86 15018939249, WhatsApp: +852 5103 9249)