China - Hong Kong, Special Administrative Region - Attachment of Assets
Originally from Attachment of Assets
1. What is the general nature and effect of judicial measures available for plaintiffs to obtain provisional relief affecting property of debtors to obtain security for judgments to be obtained (“attachments”)? Freezing property in place? Placing it in the custody of a third party, such as a court official, sheriff or marshall?
In Hong Kong, the Mareva (i.e. asset-freezing) injunction is the primary judicial remedy available to a Plaintiff seeking to obtain provisional relief against a Defendant to prevent the dissipation of the Defendant’s assets pending judgment: see Section 21L of the High Court Ordinance (Cap 4) (“the HCO”), Order 29, rule 1 of the Rules of the High Court (Cap 4A) and (e.g.) Akai Holdings Ltd v Ho Wing On Christopher  5 HKLRD K2 (CFI). A Mareva injunction has the effect of freezing a Defendant’s assets (to a specified value) by prohibiting their disposal for a specified period of time. The injunction is in personam directed to the Defendant: see Fourie v Le Roux  1 WLR 320 (HL). It does not give the Plaintiff any proprietary interest in the Defendant’s property or any priority vis-à-vis the Defendant’s other creditors: see Kanematsu-Gosho (H.K.) Ltd & Anor v Lee Boon-Chean & Ors  HKLR 59 (HC), Nicolas Pappadis & Anor v Chan Shing-Sheung, Barry & Ors  2 HKLR 511 (CA) and Harain Lai Navalani & Anor v Tokai Bank Ltd  3 HKC 203 (CA). Nevertheless, a Mareva injunction can be granted to prevent a debtor from destroying the value of his assets to the detriment of his creditors either because he had an ulterior purpose or simply for no rational reason: Sunlink International Holdings Ltd v Wong Shu Wing  5 HKLRD 653 (CFI).
2. What is the form of the attachment? Injunction? Other kind of judicial order? Specify.
The Mareva injunction is an injunction prohibiting the Defendant from removing or disposing of assets to a specified value for a specified period of time. The order may be restricted to assets identified in the Mareva injunction or it may be expressed to cover all assets of the Defendant within Hong Kong only or worldwide.