With the governments of Hong Kong and Australia kicking off the negotiations for a free trade agreement in April 2017, which aims at further strengthening the already vibrant trades between the two regions, trading volume is bound to explode following conclusion of the bilateral treaty. With the explosion in trades also, unfortunately, will come the disputes between trading partners.
This article wishes to introduce briefly how civil judgements obtained in either jurisdiction can be enforced in the other. Broadly, as both Australia and Hong Kong are common law jurisdictions, civil judgments obtained in either jurisdiction can be enforcement at common law or under statute. Given enforcement of judgements at common law could always be uncertain, difficult and complex, this article will focus for the time being on enforcement under statute.
Enforcement of Hong Kong Civil Judgments in Australia
In Australia, the Foreign Judgments Act 1991 and the Foreign Judgments Regulations 1992 provides a certain and clear platform in terms of the procedure and scope for the enforcement of foreign civil judgements in Australia. It is noteworthy at the outset that the Foreign Judgments Act is a commonwealth legislation which means it applies to the whole of Australia instead of a particular state, and thus, for example, once a judgement obtained from a Hong Kong court is recognised under that Act it is registrable at any state (or Territory) supreme court and enforceable against the defendant’s assets all over Australia.
In the Schedule to the Foreign Judgments Regulations, only judgements of Hong Kong’s Court of Final Appeal and High Court (consisting of the Court of First Instance and Court of Appeal) are recognised as registrable. Thus, judgements granted by the District Court or the Lands Tribunal, for example, are not registrable. Further, not all types of judgements from Hong Kong’s CFA or High Court are registrable. To be registrable, the judgement must only be “money judgements” and final and conclusive, although the fact that there is an appeal pending against the judgement or that it may be the subject of an appeal does not prevent the judgement from being final and conclusive. Once the relevant judgement is registrable under the Act it can be registered at more than one states where the defendant’s assets are located.
The Hong Kong judgement must be registered within 6 years after it is granted or the date of the last judgement of the appeal.
After registration, the Hong Kong judgment can be enforced as if it were an Australian judgment.
Enforcement of Australian Civil Judgements in Hong Kong
By virtue of s. 3 of the Foreign Judgments (Reciprocal Enforcement) Ordinance and the Schedule to the Foreign Judgments (Reciprocal Enforcement) Order, money judgements awarded by all state supreme courts, Federal Court and High Court of Australia are registrable at the Court of First Instance, High Court of Hong Kong and thereafter enforced as if it were a judgment of that court.
The foreign judgment enforcement regime in Hong Kong bears a striking similarity to its counterpart in Australia. Both regimes apply only to money judgments granted by a foreign court, and both provide a limitation period of 6 years from date of the judgment or date of last appeal for registration. Both regimes also provide that the relevant judgement must be final and conclusive before it is registrable, but the judgment can still be final and conclusive notwithstanding an appeal is still pending against it or it may be the subject of an appeal.
An interesting difference lies perhaps in that a Hong Kong judgment is registrable in any state of Australia, whereas an Australian judgment is not so registrable in other parts of the PRC than Hong Kong. This is, as is widely known, because Hong Kong is a totally different jurisdiction from other parts of the PRC. Given the ever increasing trading and business intercourses between Mainland China and Australia these days and the relative impenetrability of the PRC legal system to foreign judgment enforcement, an important (but undecided) question arises as to whether an Australian judgment, once registered in Hong Kong under the Foreign Judgments (Reciprocal Enforcement) Ordinance (thereby becoming a Hong Kong judgment), is registrable in the Mainland of PRC (and thus converted into a Mainland judgement and enforceable as such) by virtue of the “Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and of the Hong Kong Special Administrative Region” (“Arrangement”) made between the Mainland of PRC and Hong Kong in 2008 providing for mutual enforcement of commercial judgments between the two jurisdictions. This issue seems to be untested in any courts of the PRC but in view of the closeness of the PRC judicial system to enforcement of foreign judgments, such attempts at “back-door” enforcement of foreign judgments in Mainland China would likely to be frowned up, unwelcomed or even resisted by its judiciary. In any case, if the Australian party wishes to avail himself of the benefits under the Arrangement, the relevant commercial agreement between the Hong Kong party and Australian party should provide for the Hong Kong courts, rather than Australian courts, to determine disputes arising under the agreement.
在澳大利亞，1991年的 ” Foreign Judgments Act” (境外判決法) 和1992年的 “Foreign Judgments Regulation (“境外判決規則”) 為在澳大利亞執行外國民事判決的程序和範圍提供了一個明確的平台。首先值得注意的是，境外判決法是一個聯邦法例，這意味著它適用於整個澳大利亞而不是若干的州分，因此，舉例來說，一旦根據該法確認了香港法院的判決在澳大利亞是受到承認, 它則可在任何州（或屬地）的最高法院登記並随之而對被告在澳大利亞任何地區的資產執行。
在境外判決規則的附表中，只有香港終審法院及高等法院（包含原訟庭及上訴庭）的判決是可登記的。因此，諸如香港區域法院或土地審裁處頒發的判決則不可登記。此外, 並非所有香港終審法院或高等法院的判決皆可登記。若要登記，判決必須是涉及金錢賠償的判決, 並且是最終的判決，但判決正等待上訴或與訟一方可能提出上訴並不影響判決的終局性。一旦有關判決獲得承認, 它則可在多於一個州同時登記。
一個有趣的區別在於，香港的判決在澳大利亞的任何州都是可以登記的，但澳大利亞的判決在香港以外的中國其他地區則不能登記的。眾所周知，這是因為香港與中國其他地區是兩個截然不同的法域。由於中國內地與澳大利亞之間的貿易往來和商業交往近年來日益頻繁，而外國的判決在中國大陸的執行上基本難以越雷池半步, 這裡因而出現了一個重要的（但懸而未決的）問題: 在香港根據《外地判決(交互強制執行)條例》登記的澳大利亞判決（從而成為香港的判決），是否可按照由中港兩地政府於2008年實施的《關於內地與香港特別行政區法院相互認可和執行當事人協議管轄的民商事案件判決的安排》（”安排”） 在中國大陸登記 (由此變為內地判決，並可在內地執行) ? 這個問題似乎在中國內地司法上沒有先例，但鑑於中國大陸對境外判決在內地可執行性的封閉程度，大陸法院對這種走後門式的把境外判決引入大陸執行, 很可能不接受甚或抵制。但無論如何，如果澳大利亞方欲嘗試利用“安排”之便以間接通過香港在中國大陸執行澳大利亞的判決，香港方與澳大利亞方之間的有關商業協議應訂明香港法院(而非澳大利亞法院) 作為裁決爭端的法院。