Cap 192 s 28 Attachment of income to satisfy order (MATRIMONIAL PROCEEDINGS AND PROPERTY ORDINANCE)

Contents of Section

Chapter:	192	Title:	MATRIMONIAL PROCEEDINGS AND PROPERTY ORDINANCE	Gazette Number:	20 of 2007
Section:	28	Heading:	Attachment of income to satisfy order	Version Date:	23/11/2007

(1AA) In this section-
"Amendment Ordinance" (《修訂條例》) means the Attachment of Income Order (Application to Government and Miscellaneous Amendments) Ordinance 2007 (20 of 2007); (Added 20 of 2007 s. 7)
"attachment order" (扣押令) means an order made under subsection (1);
"designated payee" (指定受款人) means, in relation to a maintenance order, the person named in that order as the person to whom the maintenance payments are to be made;
"income source" (入息來源) means a person by whom the income of the maintenance payer is payable and includes the Government; (Added 20 of 2007 s. 7)
"maintenance payer" (贍養費支付人) means, in relation to a maintenance order, the person against whom that order is made;
"specified payee" (指明受款人) means, in relation to an attachment order, the person named in that order as the person to whom an amount attached by that order is to be paid.

(Added 20 of 2001 s. 4. Amended 18 of 2003 s. 10)

(1) Where a maintenance order has been made against a maintenance payer and-

(a) (i) a court is satisfied that the payer has without reasonable excuse failed to make any payment which he is required to make by the maintenance order; or

(ii) a court is satisfied that there are reasonable grounds to believe that the payer will not make full and punctual payment in compliance with the maintenance order; or

(iii) the payer and designated payee agree to the making of an order under this section; and

(b) there is any income capable of being attached payable to the payer,

the court may, in accordance with rules made for the purpose of subsection (6), order the income to be attached as to the whole or part of the amount payable under the maintenance order and the amount attached to be paid to the specified payee. (Replaced 20 of 2001 s. 4)
(1A) For the purpose of subsection (1)(a)(ii), in deciding whether there are reasonable grounds to believe that the maintenance payer will not make full and punctual payment in compliance with the maintenance order, the court shall take into account all the circumstances of the case, including (but not limited to)-

(a) the payer's past record and conduct in discharging his reasonable financial obligation towards the designated payee before any maintenance order is made;

(b) the payer's past record and conduct in connection with the making of maintenance payments to the payee pursuant to the maintenance order or an undertaking in any proceedings; and

(2) (Repealed 20 of 2001 s. 4)
(2A) The court may, at any time after a maintenance order has been made, including in the same hearing in which the maintenance order is made or varied, make an attachment order. (Added 20 of 2001 s. 4)
(2B) An attachment order may be made by the court on its own motion or on the application by the maintenance payer or the designated payee or both. (Added 20 of 2001 s. 4)
(3) An attachment order is an authority to an income source to make the payment in accordance with the order, and the receipt of the specified payee is a good discharge to that income source. (Replaced 20 of 2007 s. 7)
(3A) Without limiting the generality of subsection (1), that subsection applies to income that is wages or salary payable to a maintenance payer by the Government, and accordingly paragraph (a) of the proviso to section 23(1) of the Crown Proceedings Ordinance (Cap 300) is not to be construed as precluding the court from making an attachment order in respect of such wages or salary. (Added 20 of 2007 s. 7)
(4) Without limiting the generality of subsection (1), that subsection applies to income that is wages payable to a maintenance payer by a person other than the Government, and accordingly section 66 of the Employment Ordinance (Cap 57) is not to be construed as precluding the court from making an attachment order in respect of such wages. (Replaced 20 of 2007 s. 7)
(5) Where-

(a) pursuant to an attachment order, an employer is required to make a deduction from the wages of his employee in any wage period; and

(b) that deduction, together with any deduction authorized to be made under section 32 of the Employment Ordinance (Cap 57) by the employer from the employee's wages in the same wage period would in total exceed the whole of the wages payable to the employee in respect of that wage period,

then the amount liable to be deducted by the employer pursuant to the attachment order shall be treated as being reduced by such an amount that the total of all deductions made by the employer does not exceed the whole of the wages payable to the employee in respect of the wage period.
(6) Rules made under section 32 may, in relation to proceedings under subsection (1), make provision for-

(a) the matters to be contained in any application for an attachment order, and the manner of filing and service of such an application;

(b) compliance with an attachment order;

(d) the obligations of the maintenance payer when an attachment order is in force or in the event of an attachment order ceasing to have effect for any reason;

(e) the recovery from the maintenance payer of the clerical and administrative costs incurred in complying with an attachment order;

(f) the variation or discharge of an attachment order;

(g) the enforcement of an attachment order.

(6A) Rules made for the purpose of subsection (6) may empower the court to dispense with or relax any procedure or abridge any time limit specified in the rules if the court is satisfied that it is fair and reasonable to do so in the circumstances of the case. (Added 20 of 2001 s. 4)
(7) Rules made for the purpose of subsection (6) may provide that the contravention of any rule shall constitute an offence punishable by a fine at level 2 and by imprisonment for 1 month.
(8) The Chief Justice may specify the form of any document which is to be or may be filed in proceedings under subsection (1).
(9) Any attachment order-

(a) made by the court before the commencement date* of the Amendment Ordinance in respect of the wages or salary payable to a maintenance payer by the Government; and

(b) which has not been discharged or declared invalid by the court as at that commencement date,

has effect from that commencement date as if it were made under subsection (1) as read with subsection (3A). (Added 20 of 2007 s. 7)
(10) An application-

(a) for an attachment order in respect of the wages or salary payable to a maintenance payer by the Government;

(b) that is pending immediately before the commencement date* of the Amendment Ordinance; and

is to be determined in accordance with this section as amended by the Amendment Ordinance. (Added 20 of 2007 s. 7)

(Added 69 of 1997 s. 30)

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Note:
* Commencement date: 23 November 2007.