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(b)
Why reform should be considered
While the Leiduck case represents the currently definitive statement of the law on this
topic in Hong Kong, the Working Party considers the question of possible reform of
the rules worthy of exploration for a number of reasons.
First, policy considerations militate in favour of the courts having a discretionary
power to provide such relief. As Lord Nicholls pointed out in his compelling
dissent,
in the Leiduck situation :-
"The first defendant's argument comes to this: his assets are in Hong Kong, so the Monaco
court cannot reach them; he is in Monaco, so the Hong Kong court cannot reach him. That
cannot be right. That is not acceptable today. A person operating internationally cannot so
easily defeat the judicial process. There is not a black hole into which a defendant can escape
out of sight and become unreachable."
His Lordship (at 313-4) described an inability to provide such relief as :-
"...... deeply regrettable in its unfortunate impact on efforts being made by courts to prevent
the legal process being defeated by the ease and speed with which money and other assets can
now be moved from country to country. The law would be left sadly lagging behind the
needs of the international community."
As Millett LJ pointed out in Crédit Suisse Fides Trust SA v Cuoghi [1998] QB 818 at
827 :-
"In other areas of law, such as cross-border insolvency, commercial necessity has encouraged
national courts to provide assistance to each other without waiting for such co-operation to be
sanctioned by international convention. International fraud requires a similar response. It is
becoming widely accepted that comity between the courts of different countries requires
mutual respect for the territorial integrity of each other's jurisdiction, but that this should not
inhibit a court in one jurisdiction from rendering whatever assistance it properly can to a
court in another in respect of assets located or persons resident within the territory of the
former."
Notes
In the Leiduck case at 305.
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