Bailiff Section pdf version
- BAILIFF SECTION
- Service of Summonses and Legal Documents
- How can the Bailiff Section assist me to gain execution of court orders / judgments?
- Execution of a Writ
of Fieri Facias or Warrant of Distress
- What happens on the date of execution?
- What if the judgment debtor settles the debt on the spot?
- What if the Bailiff cannot get into the premises?
- What happens after a successful seizure?
- Can I give instruction for the sale of distrained property?
- How do I collect the money?
- What happens after an unsuccessful seizure?
- Execution of a Writ of Possession
- Can I enforce both the Writ of Possession and Writ of Fieri Facias together?
- Performance Pledge
- Business Hours
- What are the arrangements of the Bailiff Section in case of bad weather?
- The Bailiff Section in Hong Kong serves two key roles as part of the Judiciary. Both roles help to ensure that justice is fairly administered and carried to its proper conclusion.
- On the one hand, the Bailiffs and their assistants serve summonses and other important legal documents on parties as required by a Court or Tribunal or as requested by a person who is a party to litigation, for example, a court or tribunal hearing which parties are required to attend clearly cannot proceed unless there is proof that the parties concerned have had the summonses to attend properly served on them in a manner specified by law.
- On the other hand, the Bailiff Section plays an important role in promoting full compliance with Court and Tribunal judgments and orders, for example, if a judgment debtor who has been ordered to settle a debt, or a person who has been ordered to vacate premises, fails to do so, application can be made to the Bailiff Section to take the appropriate steps to try to recover the debt or deliver the premises to the applicant.
Service of Summonses and Legal Documents
As briefly summarised above, the Bailiff Section is responsible for serving summonses or legal documents and effecting the execution of court orders and judgments.
Bailiffs and Bailiff's Assistants also carry out judicial and extra-judicial services in co-operation with the judiciary authorities of jurisdictions outside Hong Kong in respect of legal proceedings and enforcement of judgments.
Bailiffs further have the power to arrest ships under Admiralty proceedings.
Who needs to serve summonses and legal documents?
Courts and Tribunals that issue summonses or legal documents need to serve them on the parties to the litigation and their witnesses. Typical examples include writs of summonses in civil proceedings, Magistrate's summonses in traffic and miscellaneous cases, notices of hearing in various Courts, notices of trial in criminal cases, notices of claims in various tribunals, charge sheets and indictments, summonses to witness, subpoenas, interpleader summonses, and foreign process issued by foreign courts for service in Hong Kong.
Not only do the Courts and Tribunals need to serve such papers, when you are a party to civil litigation, you yourself bear the responsibility for serving documents such as a writ, an originating summonses, or a notice of claim, on the other party. You will have to prove to the Court that the service has been carried out as the law provides before your case can proceed any further. You may well wish to seek the Bailiff Section's assistance in effecting service, especially if you have not appointed a lawyer to act for you.
How are documents served?
The actual mode of service - how the document concerned is physically transmitted or delivered - is either laid down in the Ordinances or will be directed by the Judges or Registrars of respective Courts and Tribunals. The most common methods of service are:
- ordinary post
- registered post
- personal service
Service of the summonses and legal documents can be done by solicitors acting on behalf of parties. If you are acting in person, you can request the service of the Bailiff's Assistants, for example, if you are a claimant in a small claim or labour dispute, where no legal representation is permitted, the summonses to the defendant / respondent(s) /witness(es), etc. may be served on the other party by the Bailiff’s Assistants rather than by you personally.
If a document cannot be successfully served on the other party, you may apply to the Court for an order for “substituted service”, in which case the Court will decide what steps must be taken to bring the document to the attention of the other party.
Fees and cost for service of documents
Charges for service of documents for each level of court are set out in the relevant Ordinances.
How can the Bailiff Section assist me to gain execution of court orders / judgments?
Before reading the rest of this booklet, it is worth bearing the following points in mind:
- While the Bailiff Section will always use its best efforts under the law to assist you, you should be aware that judgments cannot always be enforced, for example, if the defendant is penniless or his whereabouts are unknown.
- You should also note that Bailiffs carry out execution of orders and judgments upon your instructions as applicant. It is not the job of the Bailiff Section to trace the whereabouts of the debtors or to ensure that the sum owed to the applicant is recovered.
- Further, there is no guarantee that the Bailiffs will succeed in getting any sum or seizing any goods of value. In such cases, you, as judgment creditor, still have to bear the costs of execution.
- As an applicant, you must be very careful in the instructions you give to the Bailiff. This is because, if goods and chattels are seized from the wrong persons, then any claim for wrongful seizure will be made against you and not the Bailiff.
- Bailiffs execute orders and judgments of the court. They are authorised to:
- seize goods and chattels at a value equivalent to the judgment debts plus the incidental expenses of the execution; and
- repossess lands / premises.
When should I apply for enforcement?
After you have obtained an order / judgment or award from the Court or Tribunal for payment of money to you, you can apply for its enforcement by the Bailiff if the order / judgment or award is not complied with.
You can apply for a writ of execution depending on the nature of your case.
Examples of such writs include:
- Writ of Fieri Facias (where you cannot obtain the judgment debt)
- Warrant of Distress (where you have filed a distraint case in the District Court)
- Writ of Possession (where you are unable to repossess the land / premises after the award of the judgment)
How do I apply for execution?
You should go to the Court or the Lands / Small Claims Tribunal where the order / judgment or award was made to apply for a writ of execution.
For a judgment made by the Labour Tribunal, you should obtain a Certificate of Award from the Tribunal, and register it with the District Court Registry, applying for the issue of a writ of execution.
The registry staff will give you an application form (called a "praecipe") and a writ form on which you should fill in the particulars of the defendant and the amount of money you wish to recover. To ensure successful execution of a writ, you must provide the correct address of the judgment debtor / defendant. The authorised officers in the Court will approve the issue of the writ.
You will be required to pay deposits covering both the cost of a private security guard service and the travelling expenses incurred by the Bailiff.
What should I do after obtaining a writ?
For High Court cases, take the approved writ of execution together with the endorsed note of the deposit to the Bailiff Office (Admiralty and High Court) of the Bailiff Section. For other cases, the writ of execution should be filed directly with the respective Court Registry.
Your case will be scheduled for execution on a first come, first served basis.
Fill in Form BF 59 very carefully. This instructs the Bailiff how execution should be carried out. The Bailiff Section can arrange private security guard service on your behalf. The security guard will accompany the Bailiff to carry out execution and safeguard the goods and chattels seized after a successful execution.
Should I be present during the execution?
Yes. You should, if at all possible, accompany the Bailiff when he goes to execute the writ. This enables you
to give any further instructions on the spot.
Can I obtain priority for my execution?
All executions are scheduled in the order in which the writs are received. No request for priority of an execution
will be considered unless you have obtained permission or approval from the Registrar, High Court or the Registrar,
What fees and costs do I have to pay?
You have to pay:
- a filing fee for the writ of the execution;
- a deposit for the Bailiff’s travelling expenses; and
- a deposit for the services by the security guard.
Regardless of whether or not the execution is successful, the Bailiff’s expenses and the security guard service fees are deducted from these deposits for each attempt at execution. The more attempts you make, the greater are the costs incurred, and you may in fact have to pay a further deposit if the number of attempts warrants it. The costs you incur may only be recovered if the execution is successful and the payment of the defendant or the proceeds of the sale of goods and chattels are enough to cover the judgment debt plus the costs incurred.
Can my deposits be refunded?
You can get back any unused portion of your deposits if you decide not to proceed with the execution at any stage. You should write to the Bailiff Section stating that you intend to close the case and asking for a refund.
The Bailiff Section will inform the Accounts Office of the Court concerned. The Accounts Office will calculate the amount refundable to you and will then notify you when the money is ready for collection.
Execution of a Writ of Fieri Facias or Warrant of Distress
What happens on the date of execution?
On the date of execution of either of these writs, a Bailiff, together with a security guard, will visit the defendant's premises. You should, if at all possible, accompany this team.
If there are sufficient goods and chattels on the premises to justify a seizure, the Bailiff will seize them up to the amount endorsed on the writ, plus the estimated costs of the execution. Unless you give an undertaking to pay the necessary cost involved in effecting a seizure, the seizure will be withheld and treated as unsuccessful.
What if the judgment debtor settles the debt on the spot?
The seizure will be withheld if the judgment debtor settles the debt (plus the execution costs incurred) on the spot in cash or by a cashier's order made payable to "The Government of the Hong Kong Special Administrative Region". An official receipt will be issued to the judgment debtor.
What if the Bailiff cannot get into the premises?
To execute a Warrant of Distress, you can apply for a break open order to break into the premises after two unsuccessful
What happens after a successful seizure?
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 (excluding the seizure and auction dates) 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.
Can I give Instruction for the sale of distrained property?
If there are any specific instructions you would like to give to the Bailiff in connection with the sale of the distrained property, you should write to them within the next 24 hours after the seizure effected.
The auction is normally held at the Sales Room of the appointed auctioneer. It will be in your interest to attend the auction if you can spare the time. If you are interested in the sale, you are at liberty to made offers to purchase at the auction. In the event that the highest bid at the auction could not reach the reserve price, the Bailiff will contact you by telephone for your instructions. In case you are not satisfied with the result of an auction and wish to make other arrangement for the sale, further court order has to be applied.
How do I collect the money?
You can collect the money from the Court’s Accounts Office after 14 working days from the date of payment into
the court by the debtor or from the date of the auction, as the case may be.
What happens after an unsuccessful seizure?
If there are no goods or insufficient goods to justify a seizure, you can give instructions to the Bailiff immediately if you are on the spot. If you are not on the spot, the Bailiff will inform you of the outcome in writing and you will be required to give further instructions to the Bailiff Section within 14 days.
If you decide not to proceed with the execution, you should write to the Bailiff Section. Upon your request, the Bailiff Section will arrange for the unused portion of the deposit to be refunded to you.
Execution of a Writ of Possession
Normally, the execution of a Writ of Possession involves the following steps:
- Service of "Notice to Quit"
The Bailiff, together with the applicant, will go to visit the land / premises; and a “Notice to Quit”, advising the occupant to vacate the land / premises in 7 days will be served on the occupants or posted up in case the door is locked.
- Situation review
Review and possession appointments, upon request of the applicant, will be scheduled after a lapse of 7 days from the service of "Notice to Quit".
If the site is vacated, vacant possession will be delivered to the applicant.
If the site is still occupied, the Bailiff will notify the occupants of the scheduled delivery date.
- Delivery of the Land / Premises
The objective of this visit is to deliver the land / premises to the applicant. A locksmith will be in attendance in order to break into the premises, if this is required.
The Bailiff will take inventory of the goods and chattels, if any.
Photographs will be taken as evidence to the status of the inventory items. The charge for photo taking is $40 per case.
You are required to arrange for (a) porter(s) and transportation in order to clear any goods and chattels from the premises. It is your responsibility to look after the goods and chattels of the defendant and to return them to the defendant upon request. You will then be given possession of the vacant site.
Can I enforce both the Writ of Possession and Writ of Fieri Facias together?
Yes. If you are entitled to repossess the land / premises as well as to claim back the judgment debt, you can
enforce both executions together. The main difference is that a security guard will go with you and the goods
and chattels found in the land or premises will have to be guarded for at least 8 days before they can be auctioned.
- The Bailiff will attempt execution with a security guard upon receipt of the Writ of Execution.
- The Bailiff will within an average period of 10 days serve the "Notice to Quit" which demands removal of the occupants upon receipt of the Writ of Possession.
- Wherever possible, the Judiciary will reply at once to correspondence from members of the public. In any case, we will give you an interim reply within 10 days and a full response within 30 days of receiving a letter. If a full response cannot be given within 30 days, we will give you a further interim reply with a brief explanation.
- We welcome all comments and suggestions for improving our services. Please send them to the Judiciary Administrator at the High Court, 38 Queensway, Hong Kong.
For general telephone enquiries, please call 2802 7510 to enter our interactive voice response system. This system provides members of the public with information about the Bailiff Section including its responsibilities, opening hours, appointment and execution of Court orders/judgments, and service of summonses and legal documents.
What are the arrangements of the Bailiff Section in case of bad weather?
Please refer to Typhoon and Rainstorm Warning Arrangements in the Judiciary website or radio/ television announcements of the same.