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Following is a question by the Hon Chan Kin-por and a written reply by the Chief Secretary for Administration, Mr Henry Tang, in the Legislative Council today (May 6):
Question:
I have recently received complaints from members of the public concerning the execution of court orders by bailiffs. In this connection, will the Government inform this Council:
(a) of the number of attempts made by bailiffs to execute court orders and the success rate in the past three years; as well as the reasons involved in the unsuccessful cases;
(b) whether the Government will consider reducing or waiving the fees charged to creditors when the bailiffs fail to execute court orders, so that they will be more willing to use the services concerned; and
(c) whether last year, it had studied if there was a need to give bailiffs more power, so as to increase their success rates in executing court orders?
Reply
President,
The Administration has consulted the Judiciary on the question and has received the following information and response:
(a) It is important to note that in the case of civil actions, the judgment creditor bears the responsibility of enforcing a judgment if it is not complied with. In the event that the judgment debtor does not pay in full or at all, the judgment creditor may enforce the judgment. As the judgment creditor is responsible for enforcing the judgment, he has to bear the costs of execution when he decides to execute the judgment. The Bailiff Office's responsibility is to carry out execution of the court judgment upon the judgment creditor's instructions.
The number of attempts made by bailiffs in executing court orders for the past three years and the outcome of such attempts are as follows:
2006 2007 2008
Attempts Success Attempts Success Attempts Success
Rates Rates Rates
Warrant of 6 261 40% 5 495 40% 5 528 36%
Distress
Writ of Fieri 9 001 13% 9 794 9% 9 370 12%
Facias,
Magistrate's
Warrants and
Others
Writ of 9 216 92% 7 991 93% 7 378 93%
Possession
It should be noted that in the cases of Warrant of Distress and Writ of Fieri Facias, the execution is successful where there are sufficient goods and chattels on the premises to justify a seizure, or if the judgment debtor concerned settles the debt on the spot or makes payment to the Bailiff Office. If the judgment debtor concerned is penniless, or has left on the premises goods and chattels of no or insufficient value to cover the execution expenses, or his whereabouts are unknown, the execution is classified as not successful. Whether the execution turns out to be successful or not depends on many factors which are beyond the control and responsibility of the Bailiff Office, including whether the debtor has sufficient means to repay the debt.
(b) As pointed out in (a) above, the judgment creditor is responsible for enforcing the judgment and he has to bear the costs of execution when he decides to execute the judgment. The judgment creditor has to pay a deposit for the bailiff's travelling expenses and the cost of services incurred by the engagement of security guards (for ensuring the safe custody of goods and chattels seized after the execution). These costs may be recovered if the execution is successful and the payment of the judgment debtor or the proceeds of the sale of goods and chattels seized are sufficient to cover such expenses. In the case of unsuccessful attempts, the judgment creditor is still required to pay all the travelling expenses incurred. As for the fees of the security guards, only half of the daily rate of the security guard fees will be charged. Any unused portion of the deposit will be refunded.
(c) The authority of the bailiff service is derived from section 38A of the High Court Ordinance (Cap. 4). The section already provides for bailiffs to effect orders for committal and for service and execution of the process of the High Court, in accordance with rules of court. Obstruction to the discharge of duties by bailiffs amounts to contempt of court and shall be liable on summary conviction to a fine at level 5 and to imprisonment for 12 months; or on conviction on indictment to imprisonment for two years.
As noted above, the success or otherwise of an execution depends on many factors which are beyond the control and responsibility of the Bailiff Office, such as whether belongings of the judgment debtor found at the location of execution would be of sufficient value. The Judiciary does not therefore consider that the success rate of execution of court orders could be enhanced simply by increasing bailiffs' powers and no study was conducted by the Judiciary in this regard last year.
Ends/Wednesday, May 6, 2009
Issued at HKT 12:45
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