6. What are writs of execution? How do writs of execution facilitate the enforcement of judgment?

6. What are writs of execution? How do writs of execution facilitate the enforcement of judgment? 

Writs of execution are court orders issued to give effect to and enforce the judgments or orders of a court or tribunal.  

Generally, a judgment creditor is entitled to issue a writ of execution as of right without leave of the court immediately upon a money judgment or order becoming enforceable. Leave to issue execution is required only in specified exceptional cases under Order 46, rule 2(1) of the Rules of the High Court (Cap. 4A) (“RHC”) or the Rules of the District Court (Cap. 336H) (“RDC”) or under specific procedural rules governing certain writs. Where leave is required, the application may generally be made ex parte supported by an affidavit/affirmation, unless the court directs it to be made by summons. 

Some writs of execution are to be applied for to enable bailiffs to execute the judgments or orders. For example, if a judgment debtor refuses to pay the money, or if a person ordered to vacate premises fails to do so, an application can be made to the Bailiff's Office to take appropriate steps and recover the debt or get back the premises for you, as the applicant.  

Bailiffs are authorised to: 

• seize goods and chattels of the debtor/defendant at a value equivalent to the judgment debts plus interest and the incidental expenses of the execution; and 
• recover possession of lands/premises.  

For more information, please refer to “How can the Bailiff's Office assist me to recover my debt/compensation/premises from the judgment debtor/defendant?” 

What are the major writs of execution? 

There are four separate types of writs of execution, namely (i) the writ of fieri facias, (ii) writ of possession, (iii) writ of delivery, and (iv) writ of sequestration. 

(i) Writ of fieri facias 

This writ is useful when you cannot get the compensation/judgment debt from the defendant/debtor. If there are sufficient goods and chattels on the defendant/debtor’s premises to justify a seizure, the bailiff will seize them up to the amount endorsed on the writ, plus interest and the estimated costs of the execution. You have to give an undertaking to the bailiff to pay the necessary costs involved in effecting a seizure. 

If the action is successful, the bailiff will take an inventory of all items seized. One copy will be passed to the security guard responsible for keeping watch over the items to ensure that they will not be tampered with or removed unlawfully. 

The defendant has a period of 5 working days (following the date of seizure) to settle the debt plus the estimated costs incurred for the execution. If the defendant does not pay the total amount due, then the seized items will be sold on the first working day after this period by public auction. The proceeds at auction will then be used to settle the money due to you after defraying the necessary execution charges. (Note: If you think the seized goods may not be sold at the best price via public auction, you can apply to the court for permission to sell the goods in another way.) 

(ii) Writ of possession 

It is commonly used for regaining possession of premises where the debtor fails to pay rent or make mortgage repayment to the landlord/mortgagee. 

Except for mortgage actions (Order 88 of the RHC or RDC) or summary proceedings against trespassers (Order 113 of the RHC or RDC), a writ of possession requires leave of the court before it can be issued. To obtain this leave, the applicant must file an affidavit/affirmation proving that every person in actual possession of the premises has received notice of the proceedings sufficient to allow them to apply for relief. This requirement is strictly enforced and is usually satisfied by posting notice in both English and Chinese on the main door or entrance of the premises for 3 successive days, provided that a minimum of 4 clear days has elapsed between the last day of posting and the date leave is sought. 

Once the writ is issued, the bailiff is responsible for its execution. If the premises are occupied, the bailiff will serve or affix a “Notice to Quit” on the premises, requiring the occupant to vacate within 7 days. However, the bailiff will execute the writ on its first visit if your solicitor elects to waive service of the Notice to Quit and delivers a formal written undertaking to indemnify the bailiff against all resulting liabilities and costs. 

If the bailiff cannot enter the target premises, there is no need for you to further apply for a break open order. A locksmith will be in attendance in order to break into the premises. 

(iii) Writ of delivery 

A writ of delivery is a court enforcement procedure used where a judgment or order requires a person to deliver goods to another person. It helps the successful party recover the goods ordered to be delivered. 

The procedure depends on whether the judgment allows the judgment debtor to choose between: 

• delivering the goods; or 
• paying the assessed value of the goods instead. 

If the judgment or order requires the judgment debtor to deliver the goods and does not give an alternative option of paying the assessed value, the judgment creditor may issue a writ of specific delivery. In this situation, the judgment creditor is entitled to recover the actual goods. Leave of the court is not required. 

If the judgment or order allows the judgment debtor to either deliver the goods or pay their assessed value, the judgment creditor has two possible options. 

The judgment creditor may proceed to have the value of the goods formally assessed. After that, the judgment creditor may issue a writ of delivery without leave of the court to recover either: 

• the goods themselves; or 
• the assessed value of the goods. 

If the judgment creditor wants to recover the actual goods only, and does not want the judgment debtor to have the option of paying their assessed value, the creditor must first obtain an order from the court. The application must be made by summons, and the summons must be served personally on the judgment debtor. 

(iv) Writ of sequestration and committal proceedings 

The writ of sequestration is a process of punishing contempt of court by proceeding against the property of the person in contempt (“the contemnor”).  In other words, the contemnor’s property may be seized under the writ of sequestration until the matter has been resolved.  

Another way of punishing contempt is by way of committal proceedings against the person of the contemnor. Committal proceedings can result in imprisonment, fines or security for good behaviour. 

Under Order 45, rule 5(1) of the RHC or RDC, two categories of judgment may be enforced by writ of sequestration and/or an order of committal. They are:  

• those that direct the judgment debtor to do an act within a specified time, whether such time is expressly specified by the original judgment, or by a subsequent order (a “mandatory” order); and  
• those that command the debtor to abstain from doing an act (a “prohibitory” order) 

In short, if the losing party neglects a mandatory order which requires them to do a specific act (e.g., to return an item back) or disobey a prohibitory order by committing the act regardless (e.g., an injunction), it would be considered as a contempt of court, and both writ of sequestration and order of committal are available for enforcing the judgment. 

This writ of sequestration can only be issued with leave of the court via a summons. The court has the discretion to impose a fine instead of sequestration if the disobedience is not obstinate. 

Committal has two required steps: 

1. Leave stage: The applicant must first apply ex parte to a judge for leave to apply for an order of committal. 
2. Main application stage: If leave is granted, the applicant must file an originating summons. 

In civil contempt, liability is strict in the sense that an intention to interfere with or impede the administration of justice is not required.  Hence, it is not necessary to prove that the alleged contemnor appreciated that his conduct would constitute a breach of the order, as liability for civil contempt does not depend on an intent of refusing to obey court order.  

Moreover, the fact that the act or omission is bona fide and based on legal advice will also not be considered as a defence. The above factors may, however, be relevant as mitigating factors. All that has to be shown is that:  

• the alleged contemnor knew the facts which gave rise to the contempt; and 
• the disobedience is “more than casual or accidental and unintentional”. 

However, as the court has previously stated, the writ of sequestration is regarded as a drastic means of execution, and it should only be adopted in serious cases. 

Where the contemnor is a corporation 

Where the judgment or order is against a body corporate, for example, a limited company, both the body corporate and its officer may be held to be in contempt.  

While a body corporate cannot be imprisoned, it can be fined or have its property sequestrated. 

A director or other officer of a company can be liable for contempt committed by the company in two distinct ways: 

1. Under Order 45, rule 5(1)(ii) or (iii): This applies to the officer’s failure to carry out his responsibilities to ensure the company complies with the court’s order. 
2. Under the general law of contempt: This applies where the officer is personally responsible for aiding and abetting the company in its breach. 

Under route (i), the officer may be liable even in the absence of personal moral blame or direct participation in the act of contempt itself. The officer’s primary obligation is to use his position to secure the company’s compliance. Under route (ii), it must be proved that the personal misconduct is on the part of the officer. In both instances, the contempt must be proved beyond reasonable doubt.  

For the purposes of these proceedings, an “officer” is defined as anyone who is actively concerned in the management or direction of the company, regardless of his formal job description. It is explicitly stated in the wording of the rule that an “officer” of a body corporate includes any director. 

The director’s liability is, however, not absolute. In general, the director has a personal obligation to ensure the judgment is obeyed. This includes a duty: 

• to find out exactly what has to be done by the company to comply with the order;   
• to see that such things are done properly and in accordance with the time set out in the order, whether by delegating the task to other employees of the company or by themselves personally; and   
• in the case of delegation, to ensure that the employees understand the requirements of the order and do the things properly within the time set out in the order; and to supervise the staff to ensure that they did carry out their instructions properly and timely.”   

To be held liable as an officer for a company’s breach, the law requires that the officer:   

• was fully aware of the terms of the order with which the company must comply;  
• had that knowledge at a time when he could use his position as an officer to secure compliance; and  
• was aware that failing to use his position accordingly could lead to personal enforcement steps against him. 

Hence, if the contemnor is a body corporate, the contempt may be punished by: 

• Sequestration against the property of the company;  
• Sequestration against the property of a director or other officer of the company; 

• Committal against a director or other officer of the company.