Ng Wan v. Wong Ka Sek and Another

HCB 3478/2017

[2018] HKCFI 2719

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO 3478 OF 2017

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D E C I S I O N

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1.The bankrupt was adjudged bankrupt on 11 July 2017 upon his own petition. This is his second bankruptcy. The trustees in bankruptcy of the estate of the bankrupt were appointed in September 2017. In the same month, the representative of the trustees in bankruptcy interviewed the bankrupt. On 22 October 2018, the trustees notified the bankrupt in writing of their assessment of his monthly income and expenses. A net monthly balance of HK$3,312 was requested to remain in his estate for the trustees’ administration[1].

2.The bankrupt now applies to reverse such decision of the trustees pursuant to section 82 of the Bankruptcy Ordinance, Cap 6.  Section 82 provides that subject to the ordinance, the trustee shall use his discretion in the management of the estate and its distribution among the creditors.  Section 83 provides that in an appeal against the decision of the trustee, the court is exercising its discretion.  On this basis, it becomes the burden of the bankrupt to satisfy the court that the decision of the trustee ought to be reversed or varied.  That any other person or indeed the court may take a different view of the matter per se does not suffice to justify interference with the decision of the trustee lightly.  The court expects to be satisfied that the trustee has erred in principle, including falling out of line of proper exercise of his discretion reasonably expected in the circumstances of this case, before reversing the trustee’s decision.

3.In his affirmation in support, the bankrupt referred to his following needs in merely general terms:

(1)   family expenses;

(2)   medical expenses;

(3)   support for his unemployed son; and

(4)   support for his father.

4.The essence of the bankrupt’s oral submission is that most items of the expenses allowed by the trustees fall short of his actual needs.

5.The affirmation of the trustees and their report of the investigation summarised in the trustees’ letter to the bankrupt mentioned above explain how the above monthly net balance was arrived at:

(1)   Allowance for rent is actually higher than what the bankrupt claimed.  Some items of family expenses are allowed at lesser sums than claimed, while various items of expenses on utilities,albeit not claimed, are allowed.

(2)   Expenses on food in the sum of HK$6,000 claimed is not allowed. Instead, HK$4,500 and HK$1,000 are allowed for the bankrupt’s share of food expenses and family miscellaneous expenses respectively.  On top of that, a sum of HK$1,000 is allowed for his personal miscellaneous expenses.

(3)   As to the other family members in the same household, his 50-year-old wife is working and earning HK$8,000 per month. This differs from his statement of affairs whereby he claimed he had to support his wife by a monthly sum of HK$6,000.  Further, his 27-year-old daughter is also working and earning amonthly income of HK$10,000.  Both of them are in a position to support themselves.  Factoring in the purported burden of supporting his 25-year-old unemployed son is considered not reasonable.

(4)   As to his father, a sum of HK$3,000 is allowed for his support, which is exactly the amount claimed in the statement of affairs.  The trustees noted that the bankrupt has a brother, who has work, so that the brother should in the ordinary course of event be expected to assist, if necessary, in supporting the father.

(5)   As to his own medical expenses, a sum of HK$500 is allowed, which is exactly the amount claimed in the statement of affairs.

(6)   The claim for contribution towards MPF is flawed, as the same would have been accounted for before he received his salary.

6.The trustees indicated that review will be warranted if there is any change in circumstances.  Ad hoc expenses, if proved to be necessary, would also be considered.  I have no basis for differing from the trustees’ view that there is no such circumstance at the moment.  What the bankrupt asserted in this application do not have any actual evidence in support at all.

7.The bankrupt has failed to show, either by evidence or his representation to the court, that the trustees have erred or failed to properly come to their assessment in the circumstances of the case as of today.

8.The application is dismissed.  The trustees indicated that no costs would be sought.  I accordingly make no order as to costs.

The applicant appeared in person

The respondent, represented by Mr Wong Ka Lam King, appeared in person

Attendance of the Official Receiver was excused

[Interpreter assistance will be arranged for the handing down of this decision.]