一位無理纏繞的訴訟人（“無理訴訟人”）是一位經常採取法律訴訟但沒有足夠法律理據支持這些訴訟的人。他們通常具有以下特徵：

• 給被告造成不便，使其遭受騷擾，或無理訴訟人可能獲得的收益與訴訟的正本完全不成比例 (Attorney General v Barker [2001] WL 191122 (English Queen’s Bench)) ；
• 對同一個被告重複相同的訴訟，可能在理據上有微小的變化 (Barker, supra)；
• 立即上訴或挑戰每個法院的判決 (Barker, supra)；
• 未能注意到或不遵守法院的命令 (Barker, supra)；
• 不遵守程序, 例如最後一刻才提交證據、延遲/不遵守期限、不遵守法院命令、不遵守送達法律文件的程序或完全無視送達法律文件的要求、或抱怨其他人不應該根據相關的程序把法律文件送達給他；
• 出席聆會時，無法以禮節行事，而且可能向對方或法官做出侮辱的行為或說出侮辱的言論 (Ng Yat Chi v Max Share Ltd et al [2005] 1 HKLRD 473 (CFA))；
• 很多時候，總是沒有律師代表或被拒絕法律援助的申請 (Ng Yat Chi, supra)；
• 欺詐行為 (Yuen Oi Yee Lisa v Charoen Sirivadhanabhakdi & Ors [2015] HKDC 1336 )；
• 同一時間，用不同的途徑要求上訴，而結果是法院在不知情的情況下進行多項訴訟，向行政機構投訴，在地區法院或高等法院把已被判了敗訴的案件從新開始訴訟，以及向上訴法院和終審法院尋求上訴（X v MM and Anor [2018] HKDC 215）。

無理訴訟人可能會嘗試申請法律援助，但是即使他滿足經濟審查，也可能不能通過訴訟具有合理理據的檢測。

以下是受害者對付無理訴訟人的一些辦法及工具：

1. 禁制令

禁制令是一個法院的命令，要求當事人避免在特定時期內做出特定行為（禁止性禁令）或要求當事人做出特定行為（強制性禁令）。

在無理訴訟中被禁止的行為的例子：

• 向無關的第三方披露機密/個人訊息（用這些信息尋求法律建議除外）；
• 騷擾無辜的一方（例如通過發送信件/電子郵件/電話、短訊）；
• 作出/發布誹謗性言論，針對無辜的一方；
• 公開被禁制令保護的信息。

2. 剔除申請

法院可自動或應要求，在訴訟的任何階段，剔除申索陳述書或狀書的任何內容。做這類型申請的理據如下：

(a) 該狀書或註明並無披露合理的訴訟因由或抗辯(視屬何情況而定)；
(b) 該狀書或註明屬於惡意中傷、瑣屑無聊或無理纏擾；
(c) 該狀書或註明可能會對有關訴訟的公平審訊造成損害、妨礙或延遲；
(d) 在其他方面而言該狀書或註明是濫用法庭的法律程序。

如果該申索曾經被法院作出判決，法院不會允許原告往後再提起同一個申索。

3. 限制申請令/限製程序令/《高等法院條例》（第4章）第27條

實務指示11.3建立了兩個命令，讓法院可以制止無理訴訟人繼續提出訴訟：限制申請令（RAO）可以限制無理訴訟人進行當前訴訟，而限制訴訟令（RPO）可以限制無理訴訟人進行已經啟動的多重訴訟。

《高等法院條例》（第4章）第27條提供另外一個很好的方法制止無理訴訟人在將來繼續提出訴訟。根據這一個條例作出的判決，無理訴訟人不得進行任何未來的訴訟程序，除非獲得法院的預先許可。

4. 欠缺狀書/缺席判決

因為無理訴訟人通常不依照程序或時間表做事，根據《高等法院規則》（第4A章）第13和19條，被告人可以申請拿一個缺席判決，是一個快速完結訴訟的好辦法。

5. 除非命令

如果不希望直接申請刪除/簡易判決，無辜的一方可以選擇申請 “除非命令”，並利用無理訴訟人未能遵守法院的指示，繼續採取行動或做出最終判決。

6. 簡易判決

根據《高等法院規則》（第4A章）第14條，無辜的一方可以申請簡易判決。

7. 交付羈押

根據《高等法院規則》（第4A章）第52條，法院有權根據鄙視法院的行為作出羈押的命令 (鄙視法院的行為包括違反禁制令)。如果無理訴訟人始終不遵守法院命令，法院有權判監。

8. 禁止發布命令和匿名命令

匿名命令和禁止發布命令能夠幫助保護無辜者的身份，並減少對無辜者在聲譽上受到的損害。

如果您想了解更多有關如何處理無理訴訟人的法律意見，請隨時與我們的訴訟合夥人趙君宜律師談談。

趙君宜律師
+852 2186 1885
合夥人，爭議解決
高李嚴律師事務所

2020年7月31日

It is not uncommon that foreign administrators/liquidators see the needs to seek enforcement or exercise their power in Hong Kong. The legal position in this regard is by and large aligned with the rest of the common law world in that Hong Kong Courts would recognize and assist foreign liquidators upon conditions being satisfied. The liquidator will then be able to exercise powers as if it were a local liquidator subject to certain limits. Importantly, this includes power to initiate actions.

Can Foreign Administrators/Liquidators put forward Corporate Rescue Plans in Hong Kong?

Many jurisdictions have formal corporate rescue regimes aiming at helping companies survive financial distress by letting those companies reorganize debts and trade out of difficulties, such as the Chapter 11 procedures in the United States and administration in the United Kingdom. Hong Kong lacks such formal corporate rescue framework. The closest alternative available is a “scheme of arrangement”, which is neither an insolvency nor a bankruptcy process, and can be used by both solvent and insolvent companies. 

Most recently in January this year, the Legislative Council Panel on Financial Affairs tabled a proposal to revive a corporate rescue scheme similar to the US Chapter 11 scheme which was previously examined after SARS. Key features include having the company file documents with the Companies Registry, appoint a provisional supervisor, and that there will be a moratorium on legal actions against the company. Only time will tell what other features the scheme will embody, such as whether the moratorium will enable cross-border actions to protect a Hong Kong company’s overseas assets. In the meantime, the primary restructuring tool in Hong Kong remains the scheme of arrangement.   

How does a Scheme of Arrangement Work?

A company in fiscal difficulty might compile a proposal for its creditors, proposing terms for a compromise of the company’s debts so that creditors may accept a lesser amount in full settlement of the debt. It should be noted that even where a company is undergoing a winding-up procedure, the liquidator has power to initiate a scheme of arrangement.

Once the proposal has been finalized, the application is made to the Court for its approval to convene meeting of each class of affected creditors. In each of the meetings, the scheme must be approved by both a majority of at least 50% in number, and a majority in number presenting at least 75% in value of the voting creditors. Then, upon the Court’s approval, an order sanctioning the scheme will be made. Such order will bind all creditors of the company, even if they did not vote. 

Comparison with the UK CVA

Laws of Hong Kong relating to insolvency are derived from that of the UK. The latter has evolved with progressive development whereas the HK’s insolvency regime is lagging behind. In the UK, in addition to the scheme of arrangement which largely resemble that in Hong Kong, financially-stricken companies might also opt for company voluntary arrangement (“CVA”). 

A CVA allows a company to agree a composition or an arrangement with its creditors in satisfaction of some, or all, of its debts. To be effective, a CVA requires the approval of the requisite majorities of the company’s creditors and shareholders. In the case of creditors, a majority of three-quarters or more (in value) of those responding must vote in favour of the proposals to approve the CVA. As for shareholders, it requires more than half in value of the company’s shareholders present in person or by proxy and voting at a meeting on the resolution to approve the CVA.

Once the CVA is approved by both creditors and shareholders, it binds all the company’s unsecured creditors who were entitled to vote at the meeting (even if they did not vote). However, a CVA cannot bind secured or preferential creditors without their consent. In addition, it must not unfairly prejudice the interests of any creditor.

The below table sets out key differences between schemes of arrangement (whether in Hong Kong or the UK) and the UK CVA:-

What kind of company can invoke a scheme in Hong Kong?

Apart from companies incorporated under the Companies Ordinance in Hong Kong, the Courts of Hong Kong may also approve schemes of arrangement having a “sufficient connection” with Hong Kong, as evidenced by factors such as listing on the Hong Kong Stock Exchange, having creditors/management located in Hong Kong etc. In other words, foreign-incorporated companies, such as those in offshore jurisdictions, can also apply for approval of the scheme (as long as they can establish a sufficient connection with Hong Kong). It is therefore common for a foreign company with debts and liabilities in Hong Kong to seek the Court’s sanction for a scheme of arrangement in Hong Kong.

If you as a receiver or liquidator of a foreign-incorporated company would like to seek approval for a scheme of arrangement in Hong Kong, our firm’s team of experienced lawyers will be able to assist in matters including but not limited to devising a restructuring strategy, advising on each step of the restructure, negotiations with creditors if necessary, as well as preparation of proposed terms of the scheme. We will also be able to offer bespoke advice on the suitability of implementing a scheme and whether other alternatives are available to the company, so as to tailor to the specific needs of each company.  

Is Statutory Moratorium Available in HK? 

There is no statutory moratorium on creditor actions prior to a scheme of arrangement becoming effective, which practically means that any creditor can take legal action against the company. The company, during the process of restructuring, is therefore still susceptible to enforcement action by creditors or winding up petition and might still be exposed to risk of its restructuring efforts being thwarted.

In view of the lack of moratorium in schemes in the insolvency context, often case companies negotiating a scheme might at the same time initiate a provisional liquidation/liquidation to effectively create the necessary moratorium. By virtue of section 186, Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32)(“CWUMPO”), when a winding-up order has been made, or a provisional liquidator has been appointed, no proceeding shall be proceeded with or commenced against the liquidating company (except with leave of Court). This in effect creates a moratorium on creditor actions against a company which has entered liquidation/appointed a provisional liquidator. 

What if a Foreign Statutory Moratorium is sought to be enforced on Hong Kong assets/liabilities?

There are limits to the Hong Kong Court’s ability to provide assistance to foreign office holders. For instance, in Joint Administrators of African Minerals Ltd v Madison Pacific Trust Ltd where a UK administrator sought assistance from the Hong Kong Court in recognising a UK moratorium, the Hong Kong Court refused to provide assistance because the Court’s power to assist foreign liquidation was limited to the type of order available to a liquidator in Hong Kong. At present, Hong Kong does not have any equivalent mechanism to administration, and in particular there is no statutory provision which provides for a moratorium on the enforcement of a secured debt. Providing assistance to the administrator to enforce a moratorium would be an impermissible extension of common law principles.

As to what might happen if a foreign liquidator seeks a court order imposing moratorium over a Hong Kong company as part of a group restructure, the issue was considered in Re CW Advanced Technologies Limited, which involved a Hong Kong company, being part of a Singapore-headquartered corporate group held by a Cayman holding company. The group applied to the Singapore court for a 6-month moratorium (“SG Moratorium”) while it underwent restructuring. The group and the company’s largest creditor, Bank of China, took out an application to appoint provisional liquidators over the Hong Kong company. Harris J held that provisional liquidators be appointed, but did not give them power to pursue debt restructuring (e.g. by using the SG Moratorium). 

For the Hong Kong Court to recognize and assist foreign office holders in liquidation, certain conditions must be met (for details, please see our article “Legal Update: Hong Kong Court Recognizes Application by Shanghai Liquidators”). It was unclear whether the SG Moratorium was a collective insolvency proceeding for common law recognition purposes. Even if it was, there was no Hong Kong authority on whether the court may recognize a foreign insolvency proceeding where the foreign jurisdiction was not the country of incorporation. And even if the SG Moratorium was eligible for recognition, there was no Hong Kong authority on whether the court may assist by appointing provisional liquidators. In the end, the Court left open the issue whether it should recognise foreign moratoriums in the future. 

Whether the Hong Kong Court will recognize foreign moratoriums largely depends on the facts of each case. Factors to be considered include the place of incorporation of that company in liquidation, the processes taking place in Hong Kong, and eligibility of foreign creditors for Hong Kong Court’s assistance. If the company in question does not have tangible existence in its place of incorporation (i.e. it is a mere brass-plate), and that no winding-up proceedings are taking place in Hong Kong where it has no material assets/creditors, it might just be that foreign liquidation is the most appropriate way to wind-up the company. In such circumstance, recognition will likely not be granted to a foreign moratorium. 

What Enforcement Actions may be taken in Hong Kong?

Given that Hong Kong does not have debtor protection insolvency regimes like the US Chapter 11 regime or UK administration, rights of secured creditors in Hong Kong are generally unaffected by liquidation or schemes because neither a liquidation (until winding up order has been made or provisional liquidator appointed) nor a scheme (until implemented) provides for a stay or moratorium on security enforcement. Commencement of insolvency procedures does not affect a secured creditor’s rights as they are entitled to be paid out of the proceeds of their security (unless transaction is subject to claw back by liquidator e.g. in unfair preference, undervalue transactions, extortionate credit transactions, dispositions in compulsory liquidation etc.) 

Generally, once a security is enforceable (e.g. upon default), the lender can enforce its security immediately. Depending on the nature of the security, enforcement could be by way of appointment of a receiver, foreclosure or taking possession. As for enforcement of judgments, the enforcement methods depend on the nature of the judgment. Where a judgment or order is for payment of money (not payment into court however), the judgment may be enforced by a Writ of fieri facias, garnishee proceedings, charging order or appointment of receiver (also in the case of judgment or order is for payment of money into court). Judgments for possession of land are enforced by a Writ of possession.  

a.    Receivership – whereby a receiver would be appointed to take physical possession of and sell a collateral.

b.    Foreclosure – empowering mortgagee to take possession of mortgaged property and become the absolute owner of the foreclosed property, extinguishing the equitable rights of redemption by the debtor i.e. the mortgagor. 

c.    Possession and distraint order – commonly used by landlord to regain possession of premises where the debtor fails to pay rent.

d.    Garnishee order – Court order which would direct a third party such as bank to pay any amount owed to the debtor to the creditor directly.

e.    Writ of Fieri Facias – Writ which allows goods to be seized and sold by public auction. and the proceeds of sale handed to the judgment creditor.

If you have any question regarding the topic discussed above, please contact our partner Anna Chan at anna.chan@oln-law.com for further assistance.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.